(Refers to Para 18 of Part II)
EXECUTION OF WILL
1. All Wills should be clear-cut unambiguous and precise.
Please refer to AO 4/91.
2. An Executor can be a beneficiary under the Will.
3. Witnesses cannot be beneficiaries under the Will.
4. All Wills are revocable. However, in case of revoking
any Will especially so a registered
it should be clearly stated in the latest Will that,
Wills, whether registered or
un-registered, whatsoever and wherever, stand revoked
This will avoid any
5. It should be noted that a registered Will takes
precedence over an un-registered Will. Hence
in case of any revocation or alteration of an earlier
Will, the latest Will must be registered.
6. Probate is mandatory for immovable properties situated
in West Bengal, Pondicherry,
Chennai and Mumbai. The Executor of the Will has to
apply for the probate in the courts
concerned in these States.
7. Probate is not necessary in other States of India,
especially so if the Will is a valid
Choice of an Executor
8. Execution of any Will rests with the Executor of
the Will. Hence it is imperative that the
executor be an honest, trustworthy and reliable person.
9. It is advisable to have a younger person in good
health as an Executor, to try and ensure
that he/she does not pre-decease the Testator of the
Will. To avoid such an eventuality, an
Alternative Executor may also be appointed in any Will.
10. It is advisable to appoint a reliable lawyer as
an Executor, in case the property has to be
divided amongst different heirs, or if a Will gives
only life interest to any one person and thereafter
the ownership rights vest with someone else.
11. The Executor must know the contents of the Will
and be will and be willing to execute the
Will according to the wishes of the Testator.
12. The Executor must be a resident of the same town
as the Testator, to enable him to execute
the concerned Will, legally and expeditiously.
Choice of Witnesses
13. Witnesses need not know the contents of the Will,
but they must be present at the time with
the Testator and all of them must sign the Will in
the presence of each other.
14. Beneficiaries cannot be Witnesses to any Will.
15. Witnesses should preferably be younger to the Testator,
of sound integrity and good
financial position, to ensure that they cannot be
any disgruntled beneficiary or
16. Witness should also be permanent residents of the
same town as the Testator, so that they
can easily give evidence in Court, if so required.
Contents of a Will
17. `It is advisable Not to disclose the contents of
a Will to the beneficiaries. Such disclosure
generally leads to un-necessary arguments, and harassment
of the Testator.
A WORD OF CAUTION
18. It has been observed that the tendency to treat
the elderly dependents with a degree of
callousness, is becoming rampant in our society today.
It is therefore advisable that the Testator of
WILL makes full provisions for financial independence
for self and spouse while executing a Will.
HOW INVESTORS CAN GET INFORMATION ONLINE NOW !
Will Execution: the Common Law Elements of the Wills Act Formalities
To execute a valid will means to perform everything
that is necessary to conform to the requirements of the law—often called the
Wills Act formalities—so that it will have the effect intended. In years past,
most jurisdictions followed the common law that required strict compliance, but
the modern trend is to follow the testator's intent as well as possible, and not
allow correctable or harmless errors to invalidate a will.
The Wills Act formalities serve 4 main purposes:
to serve as evidence that the document is, indeed, the
testator's last will and testament;
that the ritual of following the requirements will alert
the testator that it is an important document and, thus, should be given careful
to prevent fraud since it will be more difficult to alter
it without leaving evidence of tampering;
channeling the testator to consult an attorney
to execute a will, since any mistakes may invalidate the will, causing the testator's
property to fall under intestacy.
A properly executed will has 3 fundamental requirements:
the will itself,
Each requirement has further requirements in that it must
be done in a specified way, especially the signing, and the attestation.
The will must be in writing. Oral wills—also
known as nuncupative wills—are not permitted in most states, even if the
testator is videotaped, although the videotape can supply evidence of the testator's
intent and mental capacity or to explain the gift distribution to relatives. In
those states where oral wills are recognized, there are strict requirements, such
as the prospect of imminent death when the testator had no time to execute a traditional
will and there would have to be strong evidence as to the contents of the will,
since an oral will would be an easy target for fraud.
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