A legal declaration made by the person making the will who is called the testator regarding the distribution of his property or assets to be carried out after his death. It comprises of Codicil and each writing of the testator through which he makes a voluntary posthumous disposition of property. It is a testamentary instrument that is ambulatory and revocable during the life of the testator. Thus, a Will can be changed by the executant as and whenever he so desires.
- TYPES OF WILLS:
Privileged and Unprivileged Wills
These are the wills formed by a soldier employed in an expedition or actual warfare, or an airman so employed or occupied, or a mariner at sea. Such people cannot be expected to have the means and time for fulfilling all the formalities required for a will to become valid, therefore they are not expected to fulfill such legal requirements and are given the privilege of making simpler wills.
Execution of privileged will-
- Privileged Wills can be made either be in writing, or by word of mouth.
- The execution of privileged Wills shall be governed by the below-mentioned rules:
- The testator can write the whole Will with his hand. In such a case there is no need for the Will to be signed or attested.
- It can be written wholly or partly by some other person and signed by the testator. In such a case there is no need for attestation.
- If the instrument professing to be a Will is written wholly or partially by some other person and is not signed by the testator, it shall be considered to be his Will, if it is proved that it had been written by the testator’s instructions or that he acknowledged it as his Will.
- If it is clear from an instrument that its execution was not carried out as per the instructions of the testator, the instrument shall not, because of that reason, be invalid, as long as the non-execution of it can be rationally ascribed to some cause apart from the desertion of the testamentary intentions stated in the instrument.
- If the soldier, airman, or mariner has for preparing his Will instructed or directed in writing. However, he dies before the will could be prepared and executed his written instructions shall be considered his Will.
- If the soldier, airman, or mariner has given verbal instructions for the preparing his Will in the presence of two witnesses, and those instructions have been converted into writing in his lifetime, but he has died before the instrument could be prepared and executed, such instructions shall amount to his Will, even though they may not have been converted into writing in his presence, nor read to him.
- A Will can be orally made by a soldier, airman, or mariner in front of two witnesses
- An oral Will shall become invalid if the testator is alive one month after making such will.
All other forms of wills that are not privileged are called unprivileged wills. These are the wills that require certain conditions to be fulfilled for the wills to become valid. These types of will are made by common people.
Execution of the unprivileged will
Every testator who is not a soldier employed in an expedition or occupied in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will in accordance to the following regulations:—
- A Will shall either be signed, affixed with his mark by the testator, or signed by any other person in front of the testator and as per his directions.
- The signature or mark of the testator attested to the Will, or the signature of the person signing for him shall be so put down that it shall seem that it was made to give effect to the writing as a Will.
- The attestation of the Will shall be done by two or more witnesses, each of whom should have seen the testator sign or affix his mark to the Will or has seen another person sign the Will, in the presence and by the instruction of the testator, or has received from the testator acceptance of his signature or mark, or the signature of such other person; and the Will shall be signed by each witness in the presence of the testator, but not more than one witness is required to be present at the same time, and no particular form of attestation shall be mandatory.
Conditional or Contingent Wills– A Will that is communicated to come into effect only on the occurrence of some condition or contingency, and if that contingency does not occur or the condition fails, the Will cannot be enforced legally. A Conditional Will is invalid if the condition imposed is void or against the law.
Joint Wills- A joint Will is a testamentary instrument through which two or more people consent to make a conjoint will. If a Will is joint and is intended to come into effect after the death of both, it will not be enforceable during the life-time of either. Joint Wills can be revoked at any time by either of the testators while being alive, or after the death of one of the testator, by the survivor.
Mutual Wills– A Will is mutual when two testators bestow on one another reciprocal benefits by either of them making another one his legatee. If the legatees are different from the testators, there can be no mutual wills.
Duplicate Wills– A testator may for the security make a Will in duplicate, the one to remain with him and the other to be deposited in the safe custody of a bank or executor or trustee. If the testator destroys the will that is kept by him which it is considered a revocation of both.
Concurrent Wills- A testator may for his convenience dispose of some properties in one country by one Will and the other properties in some other country by a separate will.
Sham Wills– If a document is purposely executed with all due formalities claiming to be a will, it will still be void if it can be proved that the testator did not mention any such intention in it to have any testamentary operation. Intention to make the Will is crucial to the validity of a Will.
Holograph Wills– Such Wills are written entirely by the testator in his handwriting.
- WHAT CAN BE BEQUEATHED IN A WILL?
All movable or immovable properties owned by the testator and that are capable of being legally transferred can be disposed of by a Will. Any individual having only a life interest in a property cannot make a Will about it.
- WHO CAN MAKE A WILL?
Section 5 of the Indian Succession Act, 1925 states that every individual who is of sound mind and not a minor may dispose of his property. Any person who has not attained 18 years of age is a minor according to the Indian Majority Act, 1875.
A Probate of Will certifies the authentication of the Will. For initiating the procedure of execution of a will in India, one needs to get a Probate from the court by filing a petition before the Court along with a schedule of the property and annexure of a copy of the will. Probate is a copy of certification obtained from the court of competent jurisdiction that ensured that the will can be transferred to a beneficiary mentioned in the Will.
- EXECUTOR OF THE WILL:
An Executor takes care that the assets of the testator are disposed of and settled according to the wishes of the deceased testator and the terms of the Will.
- REVOCATION OF A WILL:
A will can be revoked-
- By the wedding of the testator
- By execution of a successive Will
- By a declaration in writing with the object to revoke the Will
- By burning of the Will
- By tearing off the Will
- Destroying the Will in some other manner
- When a Will is revoked by a subsequent Will, the revoked Will so revoked fails to have any effect.
- LOSS OF A WILL:
In case of loss of the Will, it will be assumed to have been revoked. If anyone had seen a Will with the testator and that Will could not be found after his death, then it can be assumed that the said Will has already been revoked by the testator by destroying it.
The registration of a Will is not mandatory. However, the testator may either register the Will or deposit it in a cover that is sealed with the Registrar. There is no deadline for registration.
One should register the will not only because after registration the Registrar becomes the legal protector of the Will, but also because then the document becomes powerful evidence in law to prove the validity of the Will.
Codicils are an addition to a Will. The Indian Succession Act, 1925 says Codicil is a document made about a Will that describes, alters, or adds on to its dispositions and shall be considered to be a part of the Will. And thus, a Codicil is executed and attested in the same manner as a Will. A Codicil can either be a separate document or it can be countersigned on the original Will itself. A Codicil is always read with the Will as it cannot be a self-supporting instrument.
- WHAT SHOULD BE INCLUDED IN A WILL?
Testator’s details– The name, age, address, and other particulars of the testator and the date of making the will.
Declaration by the testator– It should contain the declaration of the testator that he/she is of sound mind and free of any compulsion at the time of making the Will.
Beneficiary’s details – The Will should mention the name, age, and address of the people in whom the assets given in the will is to be divided along with their relation to the testator.
The executor of the Will – An executor of the Will is required to be made to make sure that the Will is executed as per the wish of the testator. The Executor’s name, age, address, and his relation to the testator should be mentioned.
Details of property and assets to be bequeathed – The Will should contain all the particulars of the assets and properties that a testator intends to bequeath in the Will.
Division of assets – It should be mentioned in the Will what is to be given to whom in detail. In case of giving an asset to a minor the name of the minor’s custodian should also be mentioned in the Will.
Specific instructions of the testator – The testator should mention that how is the will to be executed and shall also specify the terms and instructions for executing the same.
Witness – The testator should sign the will in the presence of at least two witnesses. The witnesses don’t need to know the details given in the Will. They only have to verify that the signature by the testator was done in front of them.
Signature of the testator– After writing his last statement the testator should sign with the date on the Will.
- SAMPLE DRAFT WILL / SAMPLE WILL TEMPLATE:
Below given is the sample Will format:
I, Shri/Smt ………………….. son/daughter/wife of Shri …………….., resident of …………………., by religion………….., do hereby revoke all my previous Wills (or) Codicils and declare that this is my last Will, which I make on (Date)…………………
I declare that I am in a good state of health and have a sound mind. I am making this Will by my decision without any kind of persuasion or coercion by anybody.
I hereby appoint Shri………………….. Son/daughter of ……………, resident of …………. to be the executor of this Will. If the executor, Shri…………… were to predecease me, then Shri……………., will become the executor of this Will.
I bequeath the below-mentioned assets to my Wife Smt……………..
My house located at………(address)………
The bank balance of my account no…………………..with ……………(bank name & bank address)………
My fixed deposits in Bank…….(bank name)…..bearing ……..(FD receipt nos)……..
The returns of my insurance policy ….(Policy no)……, from…….(insurance company name)………
All the things kept in bank locker no………, with bank…………, bank address……………
I bequeath the below-mentioned assets to my son Shri……………
Residential Plot no…….., located at…………….
My car with registration no……….
All my investments with folio numbers…………………..
Any other assets that are not stated in this Will but of which I am the owner.
All the above-mentioned assets are owned by me and nobody else has any rights on these properties.
Signature of Testator
We, the witnesses attest that this Will is signed by Shri………….as his last Will at ………(Place) in our presence. The testator is in a sound state of mind and made this Will without any coercion or persuasion.
Signature of Witness (1)
Signature of Witness (2)