Wills
pratik
(Querist) 23 May 2009
This query is : Resolved
What is the meaning of concurrent wills & the details regarding the concurrent will (i.e.)
1.)who can make the wills.
2.)what to do if the concurrent will is lost.
3.) how many will does a person can have.
4.)is it applicable in india or not.
5.)under which rule or section or act the detail information is given.
pls have a look to it.
Sending any kind of material regarding the above mentioned topic please send it in a wordd document file only please.
A V Vishal
(Expert) 23 May 2009
Dear Pratik
The term 'will' means the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death.
The term Will defined u/s 2(h) of the Indian Succession Act, means the legal declaration of the intention of a testator with respect to his property which he desires to take effect after his death.
Where there are certain formalities required by statute for making a declaration regarding his intention and if those formalities are not complied with, the document cannot constitute a valid will.
A will can be drawn up for several purposes, such as for disposal of property after death, appointing a testamentary guardian, exercising a power of appointment and revoking or altering a provision of a previous Will.
Therefore, the four salient characteristics of a will are ---
There must be a legal declaration
Such declaration must be with respect to the property of the testator
The declaration must be intended to operate after the death of the testator.
Lastly, in order to hold a document to be will, it has to be proved that the same is in conformity with provisions as regards for execution and attestation in accordance with Section 63 of the Indian Succession Act.
It's preferable to make a will instead of intestacy. A person of full testamentary capacity can dispose of his property by means of a formal valid will. The reasons are:
The most obvious reason would be that the testator does not wish his property to devolve in accordance with the intestacy provisions.
A will is a personal document and it is preferable to use this as the last effective and beneficial act then to allow the impersonal provisions of intestacy to take effect.
A testator can appoint executors to be his personal representatives. Such executors can be chosen personally by him so that he can be certain that his estate will be well administered by persons in whom he has confidence.
Under intestacy the administrators, before appointment, must provide an administration bond and also sureties as to the due administration of the estate. These are not necessary for executors, since the testator, by naming them, has indicated his faith in them.
A testator, by will, can appoint a guardian for his infant children.
Under intestacy, if there is a minority or life interest, the personal representatives or trustees have the powers to investment conferred by law.
Different Kinds of will
Nuncupative will: A testament by word of mouth or without writing is called Nuncupative will. However, Nuncupative wills are now abolished.
Holograph will: A holograph will is one that is wholly in the handwriting of the testator. A holograph will is considered to be a very good form of will, because it is in the handwriting of the testator and its authenticity is enhanced, for the said reason.
Conditional or Contingent will: A will may be expressed to take effect only in the event of the happening of some contingency or condition and if the contingency does not happen or the condition fails, the will is not entitled to probate.
Duplicate will: Where a will is executed in duplicate, the testator keeping one and depositing the other with some other person, it is called a duplicate will.
The duplication is done for greater security and the deposit is usually with the executor or trustee. Note than where the testator mutilates or destroy the one in his own custody, it is revocation of both.
Concurrent will: A testator sometimes makes two wills, one relating to his property in his native country and other relating to his property in some foreign country.
In such a case, the wills are wholly independent and, probates may be granted to both the wills separately. But, if the wills are relating to the properties in both the places, both wills must be included in the probate.
Sham will: Where a document purporting to be a will is deliberatel
M. PIRAVI PERUMAL
(Expert) 23 May 2009
Requirements for creation
Any person over the age of majority and of sound mind can draft his or her own will without the aid of an attorney. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:
• A testator is a male and a testatrix is a female
• The testator must clearly identify himself or herself as the maker of the will, and that a will is being made; this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.
• The testator must declare that he or she revokes all previous wills and codicils. Otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.
• The testator must demonstrate that he or she has the capacity to dispose of his or her property, and does so freely and willingly.
• The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). There may be extra witnesses, these are called "supernumary" witnesses, if there is a question as to an interested-party conflict. In a growing number of states, an interested party is only an improper witness as to the clauses that benefit him or her (this is the case in Illinois, for instance).
• The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.
• An heir, an heiress or multiple heirs must be clearly stated in the text
After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will or wills that the testator may have created, i.e., which will satisfied the legal requirements, and to appoint an executor. In most cases, during probate, at least one witness is called upon to testify or sign a "proof of witness" affidavit. In some jurisdictions, however, statutes may provide requirements for a "self-proving" will (must be met during the execution of the will), in which case witness testimony may be forgone during probate. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. Only an original will can be admitted to probate in the vast majority of jurisdictions – even the most accurate photocopy will not suffice.
There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person's death, and so there is little room for mistake. A common error (for example) in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness – although this has the effect in law of disinheriting the witness regardless of the provisions of the will.
Some states recognize a holographic will, made out entirely in the testator's own hand (or, nowadays, typed in a word processor). Contrary to popular opinion, the unique aspect of a holographic will is less that it is written by the testator and more that it need not be witnessed. A minority of states even recognize the validity of nuncupative wills, which are expressed orally. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service; any such will is known as a serviceman's will.
A will may not include a requirement that an heir com
SANJAY DIXIT
(Expert) 24 May 2009
Nothing more to say about WILL.
