A Will is a legal declaration of a person’s intention which he desires to be performed after his death. A person who makes a will is said to have died in testate, if not it is intestate. In other words we can tell that a testator is the one who has made a legally valid will before death.Through “Will” one can transfer his property to any person he likes, i.e. Faithful servant, handicapped children, widowed daughter etc. It avoids confusion about the disposal of property, among the family members after his/her death. A will can be created by any person at any stage of life.
Following are the major characteristics of a will:
A will must be in writing and signed by the testator (except privileged will by soldier/airman engaged in warfare or a mariner being at sea). The signature must be placed in such a way that it shall appear that it was intended to give effect to the instrument as a Will.
The Will should be attested by two or more witness in the presence of the testator. The attesting witnesses need not know the contents of the Will. They are only witnesses to the signature or mark of the testator.
The attesting witness and his/her spouse must not be beneficiary under the will otherwise the bequest (the act of gifting money or property in a will) in their favour would be invalid. However the validity of other bequests under the will not be affected.
It takes effect after the death of the testator.
Will is revocable during the life time of the testator.
Muslims can make an oral will.
There is no particular form for will by law. The language should be as simple as possible and understandable even by a layman.
A Will can be made on plain paper ( need not to be on a stamp paper)
Registration of Will is not compulsory, though it is desirable
Following are the major types of Wills;
Conditional will - A will can become operational only when the condition expressed therein is satisfied.
Joint Will- A will created by two or more person. It takes effect only after the death of all testators.
Mutual Will – A will is mutual when the two testators confer upon each other reciprocal benefits.
Duplicate will – It is a copy of original will created by the testator for safety purpose. It is as good as original will.
Concurrent will – More than one will made by the same testator upon his different properties are called Concurrent wills. All are valid wills unless or otherwise each is contrary to each other.
Holograph Will – A Will entirely in the handwriting of the testator is called as Holograph Will.
Codicils – Amendments made by the testator in his will during the lifetime is called as Codicils.
Every person of sound mind, not being a minor can dispose of his property by Will. The following are fundamentals for making a valid Will:
Testamentary capacity and sound disposing mind
Knowledge of contents
Free from undue influence/fraud/coercion
Probate is a certificate granted by the court to an entrusted person including an executor or trustee certifying that the will is genuine and is definitely the last will left behind by the dead person (testator).
All properties, movable or immovable, of which the testator is owner and which are transferable can be disposed of by a Will. Property which is not legally transferable cannot be bequeathed. It means we cannot write a Will on the property which is legally not transferable. If a person has only a life interest in a property, he can not make a will in respect of it. The right to bequeath the assets according to testator’s wishes is not totally free. He can’t be permitted to make a Will in which he leaves all his property to a charity and in the process reduce his dependant family members to a state of poverty and deprivation.
Any person can be a legatee (beneficiary by the will) including a minor or a lunatic. However, a bequest to a person not in existence at the time of testator’s death is void under the Hindu and Muslim laws (This happens when the legatee die before testator). A minor can bequeath property through executor/trustees till the time of attaining majority.
Testator - Is the one who has made a legally valid will before death
Legatee - Beneficiary by the will
1. An impossible condition will render the bequest void or invalid.
2. A bequest upon a condition, the fulfillment of which would be contrary to law or immoral, is void.
Hindus, Buddhist, Sikh or Jains may execute will as per the section 30 of the Hindu succession Act, 1956.
The law of Will is contained in the part VI of the Indian Succession Act, 1925 and Christians, Parsis, and the Jews are governed by this.
Wills made by the Muhammadans are governed by the Muhammadan Law which is basically governed by their religious texts. The inheritance laws for Sunnis are different from those of Shias.
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