Will is a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death. It includes codicil and every writing making a voluntary posthumous disposition of property. It is testamentary instrument by which a person makes disposition of his property to take effect after his death, and which, in its own nature, is ambulatory and revocable during his life. Thus, a Will can be changed by the executant as and when he so likes. It is a secret and confidential document which the executant is never ordered to produce.
There are tow essential characteristics of a Will:-
(i) It must be intended to come into effect after the death of the testator; and
(ii) It must be revocable by the testator at any time. Although Wills are usually made for disposing property, they can also be made for appointing executors, for creating trusts and for appointing testamentary guardians of minor children. In one case, the Andhra Pradesh High Court has held that contents of the Will must indicate that it is intended to come into effect after death of testator and that it is revocable at any time prior to his death and a document cannot be treated as a Will by a mere reading of heading of it.
A gift to take effect the life lime of the donor is a deed of settlement and not a Will. Section 63 of the Indian Succession Act, 1925 provides that a Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will.
When a person dies without having made a Will, he is said to have died intestate. His property is then inherited by his legal heirs in accordance with the law of inheritance applicable to him. It must be noted here that legal heirs generally include close family members such as one’s spouse, children, parents, brothers and sisters.
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Home Area of Practice Wills
BRIEF NOTES ON...........
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Will means the legal declaration of the intention of a testator with respect to his property, which he desires to take effect after his death.
Essentials of a will - The following are the essentials of a will.
Legal declaration by the executant
The declaration by the executant of the will, must be legal viz. should be in conformity with the provisions of the Indian Succession Act, 1925 and must be by a person competent to make it.
Competency of person to make the will
Every person of sound mind not being a minor can execute a will. Persons who are deaf, dumb or blind are not incapacitated for making a will, if they are able to know what they do by it. A person 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 intoxication or from illness or from any other cause that he does not know what he is doing. The testator should be capable of sound and disposing mind and memory.
The declaration should be relating to the testator's property and the testator should intend to dispose off his property after his death. If the declaration is not to take effect or if the testator wanted to carry out the intention made in the declaration immediately, the instrument will not be a will, the will should be revocable during the lifetime of the testator. If the instrument is intended to come into effect with immediate effect and to be final and irrevocable, it will not be a will.
Law relating to wills
The will made by any Hindu, Buddhist, Sikh or Jain is governed by the provisions of Chapter VI of Indian Succession Act, 1925. However, the provisions of the Indian Succession Act, 1925 are not applicable to Mohammadans, who can dispose off the property by a will in accordance with the Muslim Law. Under Muslim Law, the will executed by a Mohammadan is not required to be probated.
Execution of will
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the rules.
Signature of the testator on the will
The testator shall sign or shall affix his mark to the will or it shall be signed by some other person in his presence and by his direction. The will should be dated.
Attestation
'The will shall be attested by two or more witnesses. The attestation by the witnesses should be by the signatures of the witnesses and not by their mark and the attestation should be done after the testator has executed the will and not before. The attesting witnesses need not know the contents of the will and the testator need not disclose the nature or contents of the document.
Property, which can be, disposed off by Will
Any movable or immovable property can be disposed off by a will by its owner. Under Mitakshara Law, a Hindu coparcener could not dispose off his undivided coparcenary property by will, even if other coparceners consented to it. But section 30 of Hindu Succession Act, 1956 provides that any Hindu may dispose off by will or other testamentary disposition any property, which is capable of being so, disposed of by him in accordance with law. The interest of a male Hindu in a Mitakshara coparcenary property is deemed to be property capable of being disposed off by him.
Who can be a devisee under a will
Any person capable of holding property can be a devisee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a devisee. 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.
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Registration of wills
Though it is not necessary to register a will, but the Law recognizes a Registered will when the execution of a will is disputed and when there is an unregistered will. The provisions relating to registration of the will have been given in sections 40 and 41 of the Indian Registration Act. The testator, after his death, or any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub Registrar for registration. No time limit has been prescribed for registering the will and a will may be presented for registration at any time.' A will presented for registration by the testator may be registered in the same manner as any other document. A will presented for registration by any other person entitled to present it shall be registered, if the registering officer is satisfied
(a) that the will or authority was executed by the testator;
(b) that the testator is dead; and
(c) that the person presenting the will is entitled to present the same.
The registration of will is not the proof of the testamentary capacity of the testator, as the Registrar is not required to make an enquiry about the capacity of the testator except in case the testator appears to him to be a minor or an idiot or lunatic.
Codicil
Codicil means an instrument made in relation to a will and explaining, altering or adding to its dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight changes in the will, which has already been executed. A codicil cannot alter a will more than what is necessary to carry out the testator's intention as evidenced by the will and the codicil.
Codicil means an instrument made in relation to a will and explaining, altering or adding to its dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight changes in the will, which has already been executed. A codicil cannot alter a will more than what is necessary to carry out the testator's intention as evidenced by the will and the codicil.
