Last Will and Testament

You need to know before making a Will

What is a will in Indian law?

Under the Indian Succession Act 1925, a Will is a legal instrument whereby a person proclaims what is to be done with his property after his death. Will means the legal declaration of the testator’s intentions concerning his property which he desires to be carried into effect after his death. Will shall include a codicil and every writing making an instinctive posthumous inclination of property. Section 2(b) of the Indian Succession Act interprets Codicil as an instrument made with a will. Understanding, altering, or adding to its dispositions shall be considered to construct part of the Will.

Essential Features of a Will

The essential features of a Will are as follows:

  1. It must be a declaration of an intention.
  2. Declaration of intention must be for disposition of property of testator or testatrix.
  3. Disposition so brought about must come into effect after the death of the testator or testatrix.
  4. It is always revocable so long as the testator or testatrix is alive, and he can amend, vary or revoke his earlier intention.
  5. Testator or testatrix was capable of understanding.
  6. Will is a lawful proclamation, and one needs to follow some formalities to make this a valid one with signature and attestation as per law.
  7. The major significance of a will is that it comes into a consequence after the testator’s death.
  8. As per Section 62 of the Indian Succession Act, 1925, a Will is revocable during the lifetime of the maker of Will.
  9. A modification in the Will is valid if the testator is alive since this is revocable.
  10. The major proposition of a Will is to dispose of property after the demise of the property owner.
  11. A Will becomes a public record after the testator’s demise, so no further ambiguity occurs.
  12. Probate authenticates a Will in the court after the death of the Will maker.

Types of Wills

Will Signature
  • Contingent or conditional Wills: It takes effect only when the provided contingent occurs. For instance, when a will-maker declares, “If I do not come back,” then such a Will is a Contingent Will because there is a contingency. Will Maker may come back or may not come back. But when Will Maker declares, “if you marry my daughter,” then such a Will is Conditional Will because marriage is not the contingency but a condition to be fulfilled.
  • Joint Wills: Two or more persons may create a joint will. It will take impact as if each has properly enforced a will as considers his property. If the Will is joint and is aimed at taking effect after the death of both, it will not be acknowledged to probate during the lifetime of either. Joint wills are revocable at any time by either during the joint lives or after the death of one by the survivor.
  • Mutual Wills: Two persons agree to make mutual wills to grant each other mutual benefits. A Will is mutual when two testators confer upon each other reciprocal benefits as by either of them comprising the other his legalese; that is to say when the executants fill the roles of both testator and legalese towards each other. But where the legatees are distinct from the testators, there is no concern for a mutual will. They would stay revocable during the joint lives by either. However, prior notice to the other party must be given to allow him also to modify the will.
  • Oral Wills: Given Section 57(c) of the Indian Succession Act, 1925, no oral will can be legally made. At present, Wills must be in writing, signed, and attested by two witnesses. An oral Will must be verified by very satisfactory evidence. The burden of establishing an oral will is a heavy one, where witnesses give almost distinct interpretations of the words pronounced by the testator and facts of the case make out that the testator did not have to make an oral will, it was held, and oral will was not proved. Strict proof is required to show that the testator wished to make a will.
  • Concurrent and duplicate Wills: The general rule is that a man can leave only one will at the time of his death. But for the sake of convenience, a testator may dispose of some properties. For example- Those in one country by one will and those in another country by another Will. They may be treated as wholly independent of each other unless there is any interconnection or the incorporation of the one in the other.

Likewise, a testator for the sake of security may make a will in duplicate, the one to be conserved by him and the other deposited in some safe custody with a bank or executor or trustee. Each copy must be duly signed and attested to be valid. A legal revocation of the actual would influence a legal revocation of the duplicate also.

Who Can Make A Will

Every person who is of a sound mind but not a slight can eliminate his property by Will. A married woman may eliminate, by Will, any property which she could disaffect by her Act during life. Persons who are deaf or dumb or dumb or blind are not thereby disabled for making a will if they can know what they do by it. One who is ordinarily insane may make a Will during an interval in which he is of sound mind.

No person can make a will while he is in such a state of mind, whether arising from drunkenness or illness or any other cause that he does not know what he is doing. A Will can be made by anyone above 21 years of age in India. You can prepare the will on plain paper in India. It’s not lawfully essential to make the Will on stamp paper. It is advisable to write your Will in your handwriting, as the similar can be validated later in case of any suspicions raised by relatives.

Execution of a Will

Will Execution

The procedure by which a testator’s Will is made lawfully accurate is known as Execution of Will. A Will has to be executed by the testator by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.

From the judicial verdicts, the position which emerges for holding proper execution of the will is that:

  • The testator must have a disposing sense free from all irrelevant influences with a sound mental mind.
  • The testator is assumed to be the same, having a mental capacity to make a valid will until the contrary is proved.
  • The will should be enforced following the provisions of the Act as comprised in Section 63 of the Act, i.e., the Indian Succession Act, 1925 read with Section 67 and 68 of the Evidence Act. In other words, the testator should have signed or attached his mark to the will in the presence of the two witnesses who are expected to see the testator signing or affixing his mark on the will each of the witnesses should sign in the presence of the testator.
  • The obligation of proof of the Will is on the propounder or beneficiary of the Will.
  • The existence of suspicious circumstances makes the obligation of proof extremely heavy. Such situations are expected to be removed by the propounder before the document is approved as a last will of the testator.
  • The mode of verifying the will does not ordinarily deviate from providing any other document except the special situations as embodied in Section 63 of the Succession Act.
  • To demonstrate the free eliminating mind free from extraneous considerations, the entirety of the attending conditions in a particular case is expected to be seized.

Revocability

A will is likely to be revoked or modified by the maker of it at any time when he is qualified to eliminate his property by Will. Therefore, a testamentary intent is ambulatory till demise, and a will in its nature is a revocable instrument. The making of a Will is but the origin of it, and it does not take impact till the demise of the testator. It is indisputable that the instrument sought to be propounded as a will must include the lawful declaration of the testator’s intent distressing his property. If what is sought to be eliminated by the departed by the instrument in question is not property, the instrument cannot be regarded as a will.

The important characteristic of a will is that it is a mere declaration that may be revoked or differ according to the variations in his intention. This disposition compels the testator’s demise for its realization and is but ambulatory or without limited impact until the occurrence of that event and confers no right or concern during the lifetime of the testator. The two characteristics of a will are: that it must be intended to come into effect after the death of the testator and that it must be revocable.

When is a Will Invalid?

The probate court may invalidate a will if it fails to fulfill the ordinances set by state law, like those considering who can write a Will, how the Will should be constructed, and how it should be executed. An important estate planning document, a will can be legally valid even when it’s not registered, filed, or notarized.

  • Improper construction: A will must be written according to your state’s legal ordinances, and you can even make a valid will without a lawyer. Some states also issue an age requirement on who can write a Will, such as a testator must be the age of the plurality or older. A will written by somebody underage would be invalid.
  • Failing to sign and witness a will: A will is invalid if it is not appropriately witnessed or signed. Commonly two witnesses must sign the Will in the testator’s existence after seeing the testator sign the will. The witnesses generally need to be of a specific age and should commonly not stand to assume anything from the Will.
  • Undue influence & fraud: Undue effect arises when a person coerces the testator into creating and signing a will against their wishes. The influencer usually benefits from the Will, and they have to do more than suggest the testator add them to their Will. They put the testator under a tremendous burden so that they realize they have no other option but to acknowledge.

Fake wills are never evaluated as valid. Neither are dishonest wills, which might arise if somebody cheats the testator into approving a Will by pretending it’s a less valuable document.

  • Having multiple wills: If you die departing behind numerous Wills, there may be issues with which one is valid. When you update your Will with an addendum or make a new one altogether, make sure to eliminate the older versions to avoid confusion. If you filed your earlier will with an attorney or your local county court, don’t ignore giving them the most updated version, too.

When can a will be challenged?

can a will be challenged?

A Will can be challenged because it was acquired by forgery, fraud, or unnecessary significance. Such types of cases usually include a manipulator who manipulates the testator to leave behind everything or an enormous amount of the estate for them. A will, irrespective of its registration, can be mistrusted on the following grounds:

  • Fraud
  • Coercion
  • Undue influence
  • Suspicious nature
  • Lack of due execution
  • Lack of testamentary intention
  • Lack of testamentary capacity
  • Lack of knowledge and approval
  • Forgery
  • Revocation

How do I make changes to my will?

If you’re only making minor modifications, then you can just amend your existing will. Once your Will is signed and witnessed, all alterations must be formally made using an authorized alteration known as a codicil. A codicil is a quite reasonable document that you can use to make modifications to your will. There are no extents to what you can change using a codicil, but recognize that the size and number of modifications made will influence how modest the probate procedure is after you pass away, so if you’re making big changes or you’re making a lot of them, it might be better to write a whole new will.

When you make a change to your will using a codicil, you must get the change signed and witnessed in an exact way as when you write a Will. The witnesses to the Codicil do not have to be the same as the witnesses to the will. Anyone can be a witness for a codicil contributing. They do not profit from a gift in the Codicil to have them witness it would abolish it. Once you’ve modified one, if you gave copies of your will to other people, it’s vital to assure they own the most up-to-date interpretation. You should ask them to eliminate the old version just to be sure.

How many times can I amend my will?

There is no limit to the number of times you can amend your will with a codicil. However, codicils are different documents, so there is always the chance they could get lost or segregated from the original Will. As a result, it’s a good idea not to have too many of them.

Who gets my assets if I die without leaving a will?

Living Will

The property can be acquired in three ways: Self-acquired inherited from parents and inherited from husband or father-in-law. There is a minor distinction in the distribution of the three.

If you’re single and childless, your parents will receive your entire estate if they are both living. Otherwise, it will be divided among your siblings and your surviving parent if one parent has already died. If you have no surviving parents at the time of your death, then your entire estate will be divided among siblings in equal parts. If there are no surviving parents, siblings, or descendants of siblings, then the relatives on your mother’s side would inherit one-half of the estate, with the other one-half passing to the relatives on your father’s side.

On the other hand, if you’re single and have kids, your whole estate will commonly go to your children in equal shares. If any child has died before you and that child has any children, then that child’s share will go to your grandchildren.

What Happens if You Die Without a Will and You're Married?

Depending on how your assets are occupied when you die, your estate will either go completely to your existing spouse or break between your surviving spouse, siblings, and parents. If you’re married and have kids with your recent spouse, your whole estate will go to your surviving spouse. Otherwise, your surviving spouse will receive up to one-half of the estate, with the remaining portion approving to your surviving children from another spouse or partner.

Where can I notarize a will?

Notarize a will

The most accepted means to Notarize a Will is by adding a Self-Proving Affidavit. This document is where the witnesses sign, depicting that you were of sound mind when developing the Will. You can either get the Affidavit notarized in your lawyer’s office or by studying for a notary public in your region. Notaries are often available at real estate offices, postal services, or banks. Some mobile notaries can arrive at you for a fee. The specific requirements for receiving a Will witnessed, and notarized will vary slightly depending on where you live.

 

Rules governing the transfer of property through Will

Transfer of property through a will-

A transfer of any property can similarly be made by way of enactment of a will, but the vesting of the property will take a consequence after the death of the person enforcing the will. As per the prevalent laws, a Will is neither mandatory to be stamped nor is it expected to be registered. So, a Will is a reasonable mode of transferring your property to the individuals whom you wish to.

 

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