Will, what it is?
Will is an important document which enables a person to leave his/ her property after his death to reach the desired hands as per his/ her wish and particularly not to wrong hands. A will is a document whereby a person can and shall bequeath his/her property to any person after his/ her death. The person who writes the will is known as Testator. The will written by themselves without the legal knowledge or with the help of ordinary man shall become invalid in the eyes of law and cannot be implemented or enforced, after the death of the testator.
If the true wish of the testator is not apparent on the wordings of the will or it is ambiguous about the intention, it shall make the unjustified or unintended devolution of property. Thus the will shall become invalid and ineffectual practically and the testator cannot come in person and tell what the real intention of him / herself was at the time making the will.
Thus the knowledge about and scrutiny of the will need special attention and here is to feed a fair idea about will, this information is shared with you.
Essentials of a Will
Certain formalities are to be carried out or completed with in order to make a will as a valid and enforceable one. They are:
- The testator must be of sound mind
- The property must be self acquired one
- There is no coercion or external influence over the testator
- It shall come into effect after death of testator
- It is revocable or alterable any time during the life of the testator
- There must be at least one beneficiary
- There is an Executor to execute the will
- The will must be signed by the testator in ordinary circumstances
- The will must be attested by at least 2 witnesses
Scrutiny of a Will
The solicitor has to ensure that the will has all the essentials, it was executed as per the requirements or the procedure.
Capacity of Testator
The lawyer must verify that the testator has reached the age of majority and of sound mind. He must be able to understand what he does by the Will. Age of majority is normally 18 years, however when a guardian is appointed to a minor, it shall be 21 years. Deaf, dumb or blindness shall not incapacitate or disqualify a testator from making a valid Will. The lawyer shall ensure that the testator was not a lunatic or insane, as such a person cannot make any Will.
The solicitor shall check whether the Will shall relate to disposition of the property of the Testator and ensure that the property is the self acquired one of the Testator. If it is a Coparcenary property or a joint family property, his will shall be confined to his share alone.
It may be noted that a Hindu woman cannot make Will for the property which she received as share of her husband in the HUF properties. But she can make Will on her own property acquired by purchase or gift and a Muslim cannot bequeath more than one third of his property by the way of Will.
By going through the wordings of the Will, the lawyer shall understand the intention of the Testator regarding disposition of property is free. The intention shall not be revealed or procured due to coercion, influence or fraud.
To prove that the Testator has made the Will when he was of sound mind and not intoxicated, not under coercion or any undue external influence and he expressed his intention freely and voluntarily, following procedure is to be followed.
1. The Testator has to sign or affix his mark to the Will, on all the pages.
2. If the Testator is not in a position, the Will shall be signed by another person in his presence and by his direction, while doing so, it must be remembered that the inability to sign the document is due to physical ailment or other and NOT due to the insanity or intoxication, etc
3. The will must be attested by a minimum of two witnesses. By attesting, the witnesses declare that
- The Testator has signed the Will in their presence or
- The Will has been signed by another as described in clause -2 above
- The Testator acknowledged that the Will has been signed by the Testator or by the third party
4. After ensuring the above, the witness shall sign the Will in presence of Testator. This is called attestation. It does not require all the witnesses shall or must present and sign at the same time.
There is no any prescribed form available for the Will. It must be in simple, understood by all concerned and shall not give any ambiguity.
Effect of Will
One shall not forget that a Will shall have effect and come into operation after death of the Testator. It cannot be performed or enforced during life time of the Testator.
As a Will does not give any right to the legatee or the person who can inherit the property during the life time of the Testator and as no effect, the Testator can alter or modify the terms and conditions of the Will either partially or fully.
Thus a Will can be modified or even revoked at any time and in any manner he deems fit.
A will need not be registered; but can be optionally registered with the office of the sub-registrar or registrar. The Testator must present the Will at the sub registrar office for registration. The witnesses also sign the Will at the time of registration.
Then the registrar shall get the LTI (Impression of Left Thumb) of Testator in the second page of Will and in his book by allotting a serial number to it.
Then he will make an endorsement on all pages of Will and finally scan the Will and then return the registered Will to the Testator.
Deposit of Will
A Testator can deposit his Will in a sealed cover with the Registrar. He must super scribe on the envelope his name and deliver either personally or by his authorized person, and then the registrar shall keep the Will under his custody.
If the Testator wishes to withdraw the Will, he may apply to the registrar, who shall if satisfied, deliver envelop to him.
Modification to Will/ Codicil
As we have discussed earlier that the Will shall come into effect after death of Testator, it can be modified or revoked at any time during the life time of Testator.
The document which shall alter the Will or add any property, change property or remove any property and its disposition is called a Codicil. It may also alter the position of beneficiaries by increasing or decreasing the number of beneficiaries or even completely changing them.
If the Testator wants to cancel the Will that he made earlier and wants to make a fresh Will or he wants to incorporate some changes or to modify some clauses alone, he can do so by means a document called Codicil.
The Codicil is nothing but a modification document to a Will and for part and parcel of the Will. In other words, it is equivalent to an annexure of a Will and shall not act independently.
The procedures for execution, attestation, registration, etc of a codicil are same as that of a Will.
Opening of deposited Will
After death of the Testator, any person may apply to the Registrar to open the envelope enclosing the death certificate of Testator. The registrar, if satisfied, shall open the envelope and make a copy of the Will, register the same in his book as per the procedure earlier discussed. Then he will give a copy of the registered Will to the applicant.
Executor of a Will
The wish of the Testator as found in the Will has to get into effect which needs a person to carry out. Normally, the Testator himself shall appoint a person in the Will itself to administer the property and to carry out or execute the wish or intention of the Testator. If the Will does not mention anybody's name, the beneficiaries can approach the court and pray for the appointment of any suitable person.
The person so appointed to carry out or to execute the Will, by the Testator or by the Court, is called an Executor.
Will - Nullified
"A" acquired a property vide a Will executed and registered by her mother. "A" has a younger sister "B". In the will, it is stated that "B" has bad conduct and character, that's why the mother bequeathed the property to her elder daughter. "B" challenged the will on the ground that the mother is normally residing with the younger daughter, so there is no question of bad conduct. And also the will was executed when the mother had been to elder daughter's house and witnessed by tenants of the elder daughter who would ordinarily be in support of house owner and the mother was under the influence of the elder daughter. It was allowed by the Court.