A will, also known as a last will and testament, A Will is a legal declaration of a person on a document regarding the distribution of his assets after his death. It is a unilateral document that takes effect upon the death of a person allowing you to make an informed decision on how your wealth, property and assets will be distributed on your death.
Will is a legal document but there is no prescribed form of it as it can be handwritten or typed on any document and not just the stamp paper. A Will may be revoked or altered by the owner at any time prior to his/ her death. A Person can also recommend a guardian for their minor children and make provisions for any surviving pets.
Meaning of will according to Indian Succession Act, 1925.
Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. It is a unilateral document and takes effect after the death of the person making it. It can be revoked or altered by the maker of it at any time he is competent to dispose of his property.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. However Mohammedan are not governed by the Indian Succession Act, 1925 and they can dispose their property according to Muslim Law.
Features of Will or Testament
Legal Declaration: A Will is a legal declaration. Following the formalities mentioned above will result in a valid Will.
Disposing of Property: A Will is intended to dispose of the property. There must be some property to give to others after the death of the testator.
Enforceable after death: A Will is only enforceable after the death of the testator. Your beneficiaries cannot claim any rights over your property during your lifetime.
A Will can be changed/altered: A testator can change his Will at any point during their lifetime, in any way they deem fit through a ‘Codicil’. A codicil is a document signed by the testator in the presence of witnesses to make changes to an existing Will. It is considered as a part of the Will.
A Will made under any influence is invalid: If a testator has made a Will under undue influence, coercion, or intoxication, it is not valid.
A Will can be withdrawn: A Will can be sealed and kept in safe custody or be withdrawn anytime, as per the wishes of the testator.
Only the Last Will is valid: A Will can be made at any time in the life of a person, and there is no restriction on how many times a testator can make it. However, only the last Will made before their death is enforceable.
Will through legal guardian: A person of unsound mind cannot make a Will on their own. However, it can be made by them through their legal guardian.
Who can make a will?
1. Every person who is of sound mind and is not a minor can make a will.
2. Persons who are deaf or dumb or blind can make a will provided they are able to know what they do by it.
3. A person who is ordinarily insane may make a will during an interval in which he is of sound mind.
4. No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
For Whom The ‘Will’ Can Be Made?
Any person capable of holding property can be a legatee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a legatee. Sections 112 to 117 of ‘Indian Succession Act, 1925’ put some restrictions on the disposition of property by will in certain cases. Dispositions of property by will in some cases have been declared void. If the minor person has been named as legatee by a testator then a guardian should be appointed by the testator himself to manage the bequeathed property.
Can you make your Will on your own?
Although you can write your Will on a piece of paper, see that all the details are in place and that you do not miss out important clauses and information to avoid any dispute. Drafting a Will with the help of Will-making kits can help in this regard.
However, if you have several assets that require clarity and assistance, the best practice is to hire a Will lawyer. They will be able to draft your Will clearly, avoiding ambiguities that can result in legal battles. This is especially important if your last wishes are complex or if your estate is worth a lot of money.
Another option is to make your Will and get it vetted/checked by a lawyer to confirm that it avoids legal and financial complexities, rather than inviting legal troubles to your family after your death. Since life is uncertain and death is the only certainty, one must make a Will well in time. Will wisely and timely.
Lastly, A Will can be enforced by the executor. He is the safe-keeper of the rights of the beneficiaries under the Will. The provision of the Indian Succession Act makes it mandatory for enforcement of rights under the Will only by way of a Probate. However, this bar does not apply to Hindus in India except if the immovable property is in Kolkata, Mumbai and Chennai. Probate means certifying of the Will by a court of competent jurisdiction.
The Executor can apply for a grant of probate in the court of competent jurisdiction by way of a proper application. It is advised to execute a Will in India as per the Indian laws applicable for the assets located in India