Will and Testament

Introduction:

A will or testament is a legal document that has detailed information about an individual’s final wishes in regards to how their assets are to be distributed after death. The person by whom the document is created is known as the testator and the one who manages the estate until its final distribution is known as the executor. The last will is important as it allows the testator to divide all the assets including movable and immovable property or cash and distribute them among the beneficiaries that can include family members, friends, charities or any other organization/person the testator deems worthy of giving their assets. Adding further, last wills are comparatively easier to create due to no stringent set of legal requirements in order to be effective. Besides that, there are serious consequences in case of no will; the government will split the property accordingly.

Though it has at times been thought that a "will" was historically limited to real property while "testament" applies only to dispositions of personal property (thus giving rise to the popular title of the document as "Last Will and Testament"), the historical records show that the terms have been used interchangeably.[1] Thus, the word "will" validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator.

Types of will:

Types of will are as follows:

  • Nuncupative (non-culpatory): An oral will that has been delivered by the testator orally to the witnesses. It is generally limited to sailors and military personnel.
  • Holographic will: A will entirely hand-written by the testator himself.
  • Sham will: A will executed pretending to be a will, but held invalid as it was not as per the wishes of the testator.
  • Unprivileged will: A will created by a person who is not a soldier employed in a mission or engaged in war activities or a mariner at sea.
  • Privileged will: A will that may be written or spoken (orally) by those actively involved and serving like a soldier, airmen, and mariner.
  • Conditional or Contingent will: A will is effective only if it satisfies certain conditions or can be contingent upon other factors. However, if the contingency does not happen or condition fails the will stands invalid.
  • Joint will: A will where two or more people agree upon making a conjoint will. Further, Joint will is only effective after the death of both the persons and in case either of them is alive then it would not be enforceable. Revocation of will can be done by either of the persons at any time during their joint lifetime or by the survivor after the death of the other person.
  • Concurrent will: A person writing two or more wills separately, instructing for distribution of property just for the sake of convenience is called concurrent will. For instance, first will deal with the distribution of movable property and the other deals with the distribution of immovable property.
  • Mutual will: A will where the testators nominate each other to receive the benefits after the death of the other person. It can be executed by a husband and wife.
  • Duplicate will: A will created by the testator for the sake of safety kept with the bank, executor or trustee. However, if the testator himself destroys the will then the other will is also considered revoked.

Key points to keep in mind while creating a Will:

List of points to be covered by a testator while making a Will are as follows:

  • Personal Details: The name of the testator, father’s name and residential address. It is important to mention the date in figures clearly so that there is confusion especially if the latest will supersedes those that were made earlier.
  • Validate free will: The testator should surely mention that there was no pressure or influence created on him/her while making the will.
  • Details of the Assets: The details of the assets should be clear like the address of the immovable property being willed or details of the bank accounts and insurance policies etc.
  • Appointment of Executor: An executor is a person who the testator chooses to administer his/her estate while appointing an executor one should ensure to select a trustworthy person and is able to handle the financial matters prudently.
  • List of beneficiaries: Beneficiaries refers to the people in whose name the testator transfers property. While making a will it is important to write down the list of beneficiaries by the testator so that he/she may choose how the property is divided amongst the beneficiaries.
  • Witnesses: Minimum two witnesses are required for the validity of the last will.

Registration of a Will:

A will can be registered at the Office of the Sub-Registrar, established by the State governments under the Registration Act, 1908 along with stamp duty (chargeable). After a complete draft of will is ready, the testator should visit the Registrar along with a minimum of two witnesses. Registrar also has authority to receive and hold in deposit wills.

In case the testator wants to make changes or withdraw the will then he/she can apply personally or through an authorized agent. In addition, the testator dies any person can apply for the opening of the will.

 

Rashi Chandok 
on 28 March 2019
Published in Legal Documents
Views : 438
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