How To Make A Will?

Introduction

There is a proverb that “Where there is a Will, there is a way”. But, in today’s scenario where there is a Will, there is a conflict. There are many ill will stories around to inherit the property of the ancestors. Still, in India ‘Will planning’ is not considered as a part of the financial management. But succession planning of your assets is essential if you want to protect your family from any kind of struggles or family tensions. In many cases, the absence of a Will causes many complications. In a recent judgment[1]The Madras High Court has ruled that the husband, children of a married woman will be the legatee after her demise. In the instant case, the judge canceled the certificate issued earlier by the concerned Tahsildar in which it was stated that the mother of the dead person can be the beneficiary of the Will. Justice CV Karthikeyan gave the ruling. So, it is essential, if not mandatory, to make a Will.

But before proceeding further let us understand what Will actually is. In this article, we will be learning about the Will, types of Will, its importance, planning, things to be incorporated in the Will, its procedure, and the common grounds to challenge the authenticity of the Will.

What is a Will?

A will is a legal declaration that is meant to pass on the property. There must be some property that a person is willing to pass on to his/her heirs. With some legal formalities and restrictions, a will become enforceable only after the death of the testator. A will does not affect the life of the testator. A will gives absolutely no legal rights to the legatee (one who inherits the property) to claim the property until the death of the testator. A testator can change or revoke the will anytime in his lifetime. A will can be made by any major person of sound mind at any point of time in his/her life span. The content of the will depends upon the testator, in any manner he deems fit. There is no recommended format or restrictions on how many times it can be made or revoked by the testator.

A will is a unilateral declaration to pass on the mentioned property to a legatee. A will made by Hindus, Sikhs, Buddhists, and Jain is governed by the provisions of the Indian Succession Act, 1925. Muslims are not governed by The Indian Succession Act, 1925. However, they can dispose of their property according to Muslim Law. It is recommended to make a will once in a lifetime. It makes it easier for your friends and family members to sort everything after your demise. The absence of a legal will can lead to conflicts in the family to claim the property. A will can reduce the Inheritance Tax that might be payable on the money and property you leave behind for your successor. Writing a will is extremely important when you have two or more children and other family members depending on you.

If you don’t write the will everything will be shared according to the existing law.

Types of Will

Privileged and Unprivileged Wills

Indian Succession Act under Section 66 gives some privilege to the soldiers/airmen who are engaged in actual warfare, mariners deployed in sea, and Wills executed by them are called privileged wills. It is provided in the Act that a privilege will be written or oral. It is handwritten and does not need to be signed. If the will is written by someone else on behalf of the person, then it need not be attested, it shall be deemed to be his Will only. If the Will is handwritten but incomplete then also it cannot be declared void. It is still enforceable. A privileged Will is a special Will that is prepared in an extraordinary condition that is during war or any dangerous situation. Further, if such a soldier, airman, or mariner has written instructions for the preparation of his Will, but is still alive the Will could be prepared and executed, the instructions shall be deemed to be his/her Will. Moreover, if a soldier has, in the presence of two witnesses, given oral instructions to prepare a Will for the safety of his/her family, and the person who got these instructions writes the whole content of the Will. Unfortunately, the soldier died before the Will could be completed and the executor makes any claim on the listed property, then such instructions are to be considered to constitute his Will. Although the Will was not registered or written in the lifetime of the soldier, also the soldier could not give it a read. It is also provided that such armed men, navy personnel, or the people from the air force are legalized to make such Wills. But the presence of two witnesses is required in both privileged and unprivileged Will. These Will will be declared null and void if the Will is prepared and registered, the testator is alive yet he does not approve the Will. Further, such Will won’t be considered as a privilege Will. Wills executed under the provision of Section 63 of the Indian Succession Act, 1925 are called ordinary or Unprivileged Will.

Contingent/Conditional Wills

Some Wills depend on conditions. These Wills are expressed to take effect only when a certain condition fulfills or any event happens. If any of the mentioned conditions or events fail to be executed, the Will becomes null and void at the very moment. But any condition which is contrary to the Law is invalid and cannot be incorporated in the Will. To make such Wills you need a lawyer to draft it.

Joint Wills

A testamentary document agreed by two or more people to make a conjoint Will is called a Joint Will. It is made, mostly, by the married couple. It will be enforceable after the death of both the testators. It is generally created with an intention to transfer the property to the spouse if one dies. These Wills are revocable by either of the testators at any point in time. On the death of both, the legatees would be entitled to the asset.

Mutual Wills

Mutual Wills are formulated by two people on mutually agreed terms and conditions. The terms and conditions of the Will remain binding to another partner if one dies. Mutual Wills are two separate Wills that are close mirror to each other. Mutual will ensure that property passes on to the children of the deceased person only. These Wills make sure that the Will is executed by the executor and, not by the newly married person of the living partner.

Duplicate Wills

For safety purposes, the testator may create a duplicate copy of the Will. One is with the testator and the second one is deposited in the bank custody. If the testator himself destroys or mutilates the one which is the custody then it will be the revocation of both.

Holograph Wills

Holograph Wills are entirely handwritten will by the testator. And this is legally binding.

 Concurrent Wills

Mostly, the testator leaves one Will but sometimes for better clarity according to the different geographical regions the testator makes two wills. So, co-existing Will having the testamentary declarations of a single Testator is called Concurrent Wills.

Sham Wills

In ordinary language, Sham is a, trick, or something devised to disappoint the expectation. So, a document that is prepared as a Will but lacks its true value can be termed as Sham Wills.

What to include in a Will

Testetor’s Details

Name, age, and address of the testator

Legal Declaration

The declaration must be legal. It can be illegal due to its objective or in some other way. The Will is not an agreement or contract and the legatee is not a party to the Will. The objective of the Will needs to be mentioned clearly.

Intention of the Testator

A Will declare the intention of the testator. By definition, the intention is for the future and is untouched by the present reality. A Will that talks about the present affairs and does not expose the legatee to the future intentions is not a Will. 

Details of the Property

 A Will can only be declared with respect to some property. One cannot give something that one does not have. Details of the property like registration no., the date of the registration, and a detailed description of the property. If the Will declares about the movable property so the description of each article must be mentioned clearly.

Beneficiary Details

In case of multiple beneficiaries to the Will, the details of an individual like Name, Age, Address, and the relation of the beneficiary to the testator must be given.

Desire of Testator to be carried out after the death

The Will must state in clear words the desire of the testator that needs to be carried out by the legatee after the death of the testator. If the testamentary declarations ask for the partition of the property among the children of the testator and the testator is still alive then the declaration is not a Will. Desire must be carried to bring the Will into the effect. 

Guardian for Minors

 If the Will created by the testator wishes to transfer the property to a beneficiary who is minor then it is the duty of the testator to appoint a guardian to the beneficiary who protects the assets till the minor beneficiary attains the age of majority.

Executor of the Will

 It is one of the important duties of the testator to declare an executor to the Will. An executor is a person who executes the Will after the death of the testator.

Signature and Date

The testator should clearly sign the documents to make them enforceable. The documents need to be dated also.

Exclusions

The testator cannot include the properties that are yet to be partitioned. The property of the joint family or the property of the ancestors that is common among the other family members of the house. The clauses of the Will must be read in the whole context of the Will not in the isolation. The Court will figure out the intention of the testator through the Will only not by the testator. They will consider the circumstances of the testator to get an idea of the intentions. But the Court cannot speculate what the testator might have intended to write.

Procedure to make a Will

The following process needs to follow:-

Declaration in the beginning

The first paragraph declares that you are making a Will in the full sense and have no pressure to do this.

Details of the property and documents

As mentioned in the above paragraph, include all the things wisely, if possible, under the supervision of a lawyer.

Details of the ownership

Declare that the assets you are transferring belong to you and are registered under your name only.

Signing the Will

You need to sign the Will in the presence of two witnesses after giving a careful read. It is necessary to note that the envelope, in which the Will is kept, needs to be sealed as all the formalities are done. The seal of the envelope must have the signature and should be dated.

Other Important things to keep in mind

A Will can be executed on plain paper and has full value. Under Indian law, it is not mandatory to register the Will. But to prove its authenticity and avoid any future contention it is better to register it. To get it registered, reach the office of the Registrar with the two witnesses. A registered Will can be represented as a piece of strong evidence in the court. The Will has to be signed by the Executor and be attested by the witnesses. It has to be presented in writing that the Will is signed by the testator on his/her free will. It is not mandatory for the testator to write a will on the stamp paper.

For a Will to be Legal, the beneficiary should be present as one of the witnesses.

A Will can be challenged by a person’s heirs when she/he is not satisfied with their part of share. the common grounds to challenge the legality of the will is that the testator was of unsound mind and signed the papers under the influence.

[1] “‘Only hubby, kids women\’s legal heirs- The New Indian Express.” 15 Jan. 2020, https://www.newindianexpress.com/states/tamil-nadu/2020/jan/15/only-hubby-kids-womans-legal-heirs-2089673.html.

This article is authored by Apurvi Tiwari, Student at Lloyd Law College, Greater Noida.

Please do comment your views below in the comment section. It would help us to improve our content. Also, let us know if you want us to cover blogs on any other topic.

The views and opinions expressed in this article are those of the author and do not reflect the views and opinions of Legally Flawless or its members.

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