A WILL is a legal declaration of the intention of a person with respect to his property or an estate, which he desire to take effect after his death. It is document which can be revoked, modify or substituted by the Testator’s life time. It carries the wishes in relation to the property after the death.. The person who has the intention to write a WILL should be in his free mind and free from fraud, coercion or undue influence and has to be attested by at least two witnesses .Person who executes or signs a will is Testator/ Testatrix that is, the person whose will it is. Legatee / Beneficiary are a person who inherits the property under a WILL. PROBATE is the Court certified copy of the WILL. The WILL must be initiated by the testator at the end of every page and next to any corrections and alterations. The intention of the Testator should be clearly reflected in the WILL .It should be in simple Language. No stamp duty needs to pay for WILL. A CODICIL is an instrument made in relation to a WILL, explaining, altering or adding to its dispositions and is deemed to be a part of the WILL.
The law is not strict in the case that the Will should be in writing or to be compulsory registered. It can also write in plain paper and also valued if it is unregistered .The person who is desire to get registration (executer not need) can approach the Sub-registrar with the witnesses. The Sub registrar should be the person who has the jurisdiction to register your will. A nominal registration fee is needed only. A registered WILL should be in safe custody of the Registrar and cannot be tampered destroyed mutilated or stolen. It is option of the parties whether the WILL has to register or not (Section 18). There is a special provision in part 9 of the registration act under which a testator may deposit his will in a sealed cover with the registrar. On the death of the testator any person can apply to have the WILL opened and copied in the Register.
In respect of ancestral property a person can execute a WILL in favor of any of his or her family members if there is no objection by other members. Other members want to execute a relinquishment deed in respect of the property executed by WILL. Executer is the legal representative of the testator and custodian of the property of the Testator. Under Parsi and Christian Law a witnesses cannot be an executor or a legatee. But in Hindu Law a witness can be a legatee. A Muslim is not required to have his WILL attested if it is in writing.
The will is never ordered to produce because it is a secret and confidential one. WILL must be conformity with the law of the country in which the property is situated. In case of immovable property WILL must be conform to the law of the testators domicile. As per section 63 and 65 a solider, airman in active service or a marine at sea not being a Hindu, Buddhist, Jain or Sikh can make an oral WILL .Section 63 (a) states that it should be signed by the testator .When a testator wishes to make some alteration in his WILL, he should do so by executing a codicil to his WILL. Codicil requires the same formalities as a WILL. According to Section 71 the alterations and corrections should be made in the same way as in the WILL. A WILL can be revoked by writing another WILL or through Codicil or by destruction or by marriage in some cases. There is no prescribed format for WILL.
Generally a WILL is constituted with following ingredients; The WILL should start with the date of its formations on which it is made revoking all former WILL and related documents mainly Codicil made by the testator and should declare this is the last WILL of the Testator in relation to the property mentioned in the WILL. (Section 70,Indian Succession act). Intention of the revocation should express clearly and definitely. Testimonium is the last part of the WILL. The date of the WILL also can mention here.
Testimonium is the last part of a will. The date may sometimes be mentioned in this clause or at the beginning of the will, as in deeds. Signature and attestation should be at the end of the WILL. It is advisable, to get the attestation of medical practitioner at the foot of the WILL that the testator is in mentally fit.
To prove the geniuses of the WILL at least examination of at least one of the wittiness is necessary. (Section 63 and 68 of the Indian Succession Act). In the event of unavailability of the witnesses due to death or any other circumstances, the proof of the WILL and attestation can be can be considered in the relaxed manner by having recourse to the exceptions provided under section 69,70,71 of the Act. (Section 45, 47 – about expert’s opinion). A WILL can be challenged at any time.
A WILL is required to be updated changed in the following circumstances: - When a testator marries or divorce (marriage automatically revokes a WILL in certain cases). When the person(s) appointed as the Executor(s) or guardian (s) die(s) or is/are no longer able to full fill that role and no substitute executor(s) or guardian has been appointed, When there is a change as to who the beneficiaries should be or what property is to be given to whom, When a beneficiary has changed his /her name. When there is a significant change in the composition of the Assets
If a person dies without WILL or intestate, then the law will decide to whom the property of the deceased person should go to. For instance, if a person leaves behind a girlfriend or boyfriend or even a fiancée, these people will be left with nothing from the deceased person’s estate if the person had died without having a valid WILL drawn up.
The Indian Succession Act provides for the distribution of the estate of a person dying without a WILL. Applicable law in relation to the procedure for the WILL are The Indian Succession Act, 1925, Hindu Succession Act, 1925, Hindu personal Laws, Muslim personal Laws and Indian registration Act 1908.
Most of the property may be distributed by way of WILL but if the properties held in the joint tenancy, proceeds under insurance police where there had been a valid nomination, properties held on trust for the benefit of a third party etc could not make under the limit of WILL. You can change your WILL as many times as your wish. By making cutting or crossing in the WILL make the WILL invalid.
A WILL is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists. The executor can also become the witness of the WILL.A probate is mandatory in the Event that a WILL is executed in the cities of Mumbai,
Muslim personal Law governs a Muslim testator’s power to make a WILL, the nature of the WILL, its execution and attest ion thereof etc. Under the Muslim Personal law, a Muslim testator can make a WILL orally or in writing and no form is required for such writing. However, it is preferable to have a written WILL. If the WILL is in writing it is need not be attested. It may be noted that Indian Succession Act does not generally apply to a Muslim testator unless specially stated in the Act. There are two basic restrictions on the power of a Muslim testator to make a WILL. They are: - a Muslim can bequeath only one - third of his property by WILL. The heirs of Muslim testators may consent to bequest in excess of one-third of the testator’s assets. A WILL also become void if a Muslim testator ,after making the WILL ,becomes unsound of mind and continues to be so till his death. Similarly, bequest which is contingent, or conditional or in the future or is alternative to another, preexisting one, would be void. The duties of the Executor in Muslim testators WILL will be in accordance with the Indian succession Act.
Where there are certain formalities required by statute for making a declaration regarding his intention and if those formalities are not complied with, the documents cannot constitute a valid WILL. A WILL can be drawn for several purposes such as for disposal of property after death, appointing a testamentary guardian, exercising a power of appointment and revoking or altering a provision of a previous WILL.
It is referable to make a WILL instead of intestacy. WILL according to its nature and character is divided into Nuncupative will, (A testament by word of mouth or without writing. It is abolished),Holograph Will(wholly in writing of the testator),Conditional or contingent Will ( A will may be expressed to take effect only in the event of the happening of some condition),Duplicate Will ( where a will is executed in duplicate ,the testator keeping one and depositing the other with some other person ),Concurrent Will (testator sometimes makes two wills, one related to his property in his native country and other related to property in some other country),Sham Will (Where a document purporting to be a will is deliberately executed with all due formalities ,however for a collateral object ,it is to be held null and void, WILL in solemn form (signed by testator and witnesses), self proved Will (in solemn form with affidavit of subscribing witnesses to avoid probate),Notarial will ( will in public form and prepared by civil law ,Mystic will (sealed),Service man’s Will ( will of person in active duty ,usually lacking formalities)
The WILL is standing invalid if it is brought by fraud undue influence or coercion. Make more than one copy of the WILL and keep it in safe custody.
Tags :Civil Law