Wills - Introduction
A Will is a document which ensures that your wishes with respect to your assets and property are followed after your death.
There Often arises problems and complications when a person dies without a Will. Yet we put off making a Will, not realizing the predicament we put our family in, after our death. It's a little effort that goes a long way. You will find the answers to the questions you may have had on making your Will, registering it and other relevant information.
Definitions:
A Will is defined as "the legal declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death." In other words, a Will or a Testament means a document made by person whereby he disposes of his property, but such disposal comes into effect only after the death of the testator.
Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will.
Executor is the legal representative for all purposes of a deceased person (testator) and all the property of a testator vests in him.
Legatee/Beneficiary is a person who inherits the property under a Will.
Probate is a copy of the Will, certified under the seal of a competent Court.
Testator is a person making a Will and executing it
Essential Characteristics
Legal Declaration : The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it.
Disposition of Property : The declaration should relate to disposition of the property of the person making the Will.
Death of the Testator : The declaration as regards the disposal of the property must be intended to take effect after his death.
Revocability : The essence of every Will is that it is revocable during the lifetime of the testator. People capable of making Wills are, Every person who is :
- not a minor
- of sound mind
- free from fraud, coercion or undue influence
Forms & Formalities:
Form of a Will : There is no prescribed form of a Will. In order for it to be effective, it needs to be properly signed and attested. The Will must be initialed by the testator at the end of every page and next to any correction and alteration.
Language of a Will : A Will can be written in any language and no technical words need to be used in a Will, however the words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.
Stamp Duty : 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.
Attestation : A Will must be attested by two witnesses who must witness the testator executing the Will. The witnesses should sign in the presence of each other and in the presence of the testator.
Under Parsi and Christian law, a witness cannot be an executor or legatee. However, according to Hindu Law, a witness can be a legatee. A Muslim is not required to have his Will attested if it is in writing.
Registration : 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 immoveable property. The non-registration of a Will does not lead to any inference against the genuineness of a Will. In other words, registration therefore does not give any special sanctity to the Will though registration of the Will by the testator himself evidences the genuineness of the Will.
Whether registered or not, a Will must be proved as duly and validly executed, as required by the Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen.
Procedure for Registration : 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.
Revocation & Amendment: A Will can be revoked, changed or altered by the testator at any time when he is competent to dispose of his property. A person can revoke, change or alter his Will by executing a new Will, revoking the earlier Will, registering the new Will (if the old Will is registered), destroying the old Will or by making a codicil. On the marriage of a Parsi or a Christian testator, his/her Will stands revoked, this however does not apply to Hindus, Sikhs, Jains and Buddhists.
