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What Is a Will?
A will allows you to communicate how your assets are to be distributed among those close to you after your death. This document ensures that your belongings do not devolve as per the laws of inheritance (which vary for each major religion) but as per your wishes. Its creation is frequently postponed, but it’s a good practice to have one in place and then keep updating it when necessary. All such a document needs to contain is a declaration that it is being made free from any pressure, the details of your property and who will inherit it. It need not be registered, but it is suggested that you do so at the office of the sub-registrar.
Types of Will
According to the India Succession Act, there are two types of wills, Privileged and Unprivileged will.
Privileged Wills are those Wills which are made by soldiers who are employed in an expedition or a war-like situation or an airman or mariner. These types of Wills do not have many legal formalities and they can be made in writing or orally.
- Unprivileged Wills are all other kinds of Wills and in the execution of these Wills, a lot of formalities need to be carried out from verification of signatures till attestation of witnesses.
Essentials of a Will
A Will has the following essential characteristics:
The intention of the testator must be to take effect after his death
- A Will is a form of the legal declaration of such intention
- The declaration must involve the manner of disposal of the property
- The Will can be revoked or altered during the lifetime of the testator
Who can make a Will?
As per Section 59 of the Indian Succession Act, 1925, the person making the Will must be of: –
- Sound mind
Furthermore, the section states that a person ordinarily of unsound mind may make a Will during the interval of the soundness of his/her mind. The section prohibits a person from making a Will when in a state of intoxication or illness which makes him/her incapable of understanding the consequences of the act.
Advantages of a Will
A will brings in order with regard to how your assets will be handled after your death. At such a difficult time for your loved ones, this would significantly alleviate their burden.
In case of an intestate death (without a will), your assets would devolve as per the laws of inheritance, which may not be as per your wishes. A will is where you can state exactly how you want your assets to devolve.
What is the process of revocation of a will?
The process of revocation means the cancellation of a will. This can be done in the following ways:
- If the will cannot be found after the death of the testator and was last seen in his possession, then it shall be presumed to be destroyed
- If there is an execution of a subsequent will the previous will automatically be revoked
- If there is a declaration of intention to revoke the will by the testator in written then it can be taken to uphold the new will and revoke the previous one
- Destroying the existing will by tearing, burning or by other means by the testator. This means that the testator has shown the intent of destroying the will through action.
- Presence of an unprivileged will upon the privileged will. This means that if there is an unprivileged will that is created at a later stage of time then it shall overrule the prior privileged will because it is made in a situation where the person may or may not survive.
- If the testator gets married after the will then the old will shall be deemed to be revoked. This is an important principle under the Indian Succession Act and is done to safeguard the interests of all the relevant parties.
The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity. In India, the registration of wills is not compulsory even if it relates to immovable property. The non-registration of a will does not lead to any inference against the genuineness of a will.
A will is to be registered with the registrar/sub-registrar with a nominal registration fee. The testator must be personally present at the registrar’s office along with witnesses.
No stamp duty is required to be paid for executing a Will or a codicil. A will, therefore, need not be made on stamp paper.
You can make a Will anytime after you attain the age of 18 (Eighteen) years. However, you should make a Will once you have married and have children, as these factors substantially drive the contents of the Will.
Following mistakes should be avoided while drafting a Will:
- Not being specific about the assets.
- If there are changes in the status of assets, not making the necessary alterations in the Will.
- If you are making a new Will, not making declarations to revoke previous Wills made by you.
- Appointment of any interested party as executor.
- Not appointing a guardian for minor children.
No. It is upon the testator if he wants to or not. However, if a Will is registered, it will be a document of proof that will be safe in the hands of the registrar as it cannot be tampered with thereafter.
As a testator (owner of the Will), you can change the Will at any time you deem fit. Once you have changed the Will or made a new Will, all preceding Wills are canceled automatically.
Anyone who is above 18 years of age and of sound mind can be a witness of the Will. It is generally recommended to not have beneficiary as a witness.
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