What is a Will?
A will is a legal document specifying the wishes and intentions of a person regarding the distribution of their assets and wealth after their lifetime. A person who writes a will is called a Testator.
Writing a will becomes imperative to ensuring that an estate is devolved as per the wishes of the Testator. In the absence of the same, the succession of their assets will take place in accordance with the applicable succession laws.
Essentials of a valid will in India:
A will should be drafted using clear and simple language in order to scope out any ambiguity / interpretational issues. The testator should understand the contents of the Will clearly and properly. The Will may be drafted in a person’s maiden language or translated for the respective individual while being video graphed in order to make the entire process transparent.
The testator would also be required to consider the composition of his assets and whether all the assets held by him are capable of being disposed through a will.
Executor – Another important thing is that the Testator should wisely choose an executor, who is the legal representative of Testator post his lifetime. Executor is responsible for disposing of the assets of Testator in accordance with the wishes as specified in the Will. Generally, the Testator appoints his trusted advisor/ confidante as executor of the Will who would be capable of ensuring smooth and effective transfer of the bequests.
The Testator may additionally entrust the Executor with the following responsibilities:
- To perform such funeral and obsequial ceremonies upon the demise of the Testator and to spend some specific amounts on the funeral and the obsequial ceremonies as the executor may in his/her absolute discretion deem fit;
- To perform all acts, deeds and things which are reasonable, necessary and proper for the realization, protection or benefit of the estate and completing the execution formalities.
- Witnesses – The Will must be signed in the presence of at least 2 independent witnesses, who are adults and these witnesses should sign only when they have seen the Testator sign or affix his mark to the Will or have received a personal acknowledgment of his signature. Each of these witnesses shall sign the Will in the presence of the Testator, though not necessarily at the same time. Further, in relation to the Witnesses, it is recommended that the following are kept in consideration:
- The Witnesses should be reliable, trustworthy and be able to vouch for the authenticity of the entire proceedings;
- Witnesses should be such persons who are likely to survive the Testator;
- The beneficiaries to the Will (Legatees) should, as far as possible, abstain from acting as the Witnesses to the Will.
- Medical Certificate – For a valid Will, the person making the Will should be of sound mind and legally capable of dealing with his assets. Therefore, ideally a doctor’s certificate should be attached certifying that the Testator is physically and mentally fit, of sound mind, mentally competent and can take his/her own independent decisions for making his/her Will.
- Registration – Registration of Will is not compulsory under the law. Non-registration of Will(s) does not lead to any adverse inference against the genuineness of the Will and is a personal choice of the Testator. However, once a will is registered, it is placed in the safe custody of the Registrar and cannot be tampered with, destroyed, mutilated, or stolen.
Why registration of a Will is recommended?
While it is true that the fact that a Will is not registered does not imply that the will is invalid, So why is it advised to register a Will?
The government does not consider a will to be the only final legal document for distributing a deceased person’s estate or other assets. Following the death of the Testator, the executor named in the Will initiates the testamentary proceedings in a civil court. They must apply for the same within two years of the Testator’s death. The executor must also provide proof of the Testator’s death. They should also confirm that this is the deceased’s testament.
The court issues a notice to the Testator’s legal heirs to file objections to the granting of probate or citation publication in the local newspaper. The court also confirms if the Will submitted is the actual final Will of the deceased person. It also confirms whether the Testator duly executed and attested the Will according to the law. Also, it collects proof of whether the Testator was of sound mind when they created the will. If everything seems to be in order, the Court issues a letter of probate or a letter of administration, mentioning that the necessary points are satisfied.
However, one can always challenge a Will by claiming the testator was mentally unsound while making the will. Also, one can claim that the Will was altered after being signed.
During such times, a registered Will helps the court by providing valid legal evidence against these allegations. This is because no one can destroy, steal, mutilate or tamper with the registered Will. Hence, the Court will have no reason to doubt the authenticity of the Will. This helps the asset distribution process in concluding peacefully without any chaos or confusion.
What is Probate of a Will?
It is pertinent to understand the process of obtaining the Probate of a Will. A Probate is granted by the High Court with the Court seal and a copy of the Will is attached. For seeking a Probate, the Executor of the Will, as a Petitioner is required to file the petition (after making the payment of the applicable court fees depending upon the value of the assets) before the competent court (a pecuniary jurisdiction may require a higher court to issue a probate for high-value immovable assets) through an advocate.
Thereafter, the Court usually asks the Petitioner to establish the proof of death of the Testator, as well as the proof that the Will has been validly executed by the Testator, and that it is the last Will and testament of the deceased. After receiving the petition for a Probate, the court issues a notice to the next of kin of the deceased to file objections, if any, to the granting of the probate and it also directs the publication of a citation on board to notify the general public. If there is no objection and if the next of kin of the deceased files their respective consent to the grant of Probate, then the Court grants the Probate. However, if the next of kin of the deceased files their respective objections to the grant of Probate, then the Probate Petition becomes the testamentary suit, to enable parties to lead evidence in the matter.
SOME IMPORTANT POINTS RELATED TO WILL
- WHAT IS A WILL?
A Will is a document made for the disposition of property (movable and immovable) according to the wishes of the ‘Testator’ after his death. Testator is the person who makes a Will.
- WHEN DOES A WILL TAKES EFFECT?
Will takes effect only after the death of the Testator.
- WHO CAN MAKE A WILL?
Any person who is major and of sound mind can make a Will.
NOTE- A person with a physical disability (impaired hearing, vision or speech etc.) can make a Will provided he is major and of sound mind.
- WHO CANNOT MAKE A WILL?
A Minor and a person of Unsound Mind (Insane/Idiot) CANNOT make a Will. Corporate bodies are also incapable of making a Will. A Will made by a person in state of intoxication or illness will not be a valid Will if the intoxication or illness was of such a high degree that the person making the Will was not in a fit state of mind so as to understand the effects or the nature of his act.
- CONDITIONS FOR MAKING OF A VALID WILL:
The Testator should sign or affix his mark (e.g., thumb mark) on the Will.
The Will must be attested by 2 or more witnesses who are major and of sound mind.
The witnesses must have seen the Testator sign or affix his mark to the Will; or received an acknowledgment from the Testator that he has signed the Will; and each witness shall sign the Will in the presence of the Testator.
Based on the common experience, it is advisable that witnesses should not be related to the Testator so that confidence can be inspired in the mind of the Court in case of a dispute as to the genuineness of a Will that it was made voluntarily by, and with the free consent of the Testator. It is highly advisable that at least one witness to the Will should be a doctor so that he can also testify to the fact that the Testator was in a fit state of mind at the time of making the Will.
Note: The witness should not be a beneficiary under the Will.
- PAPER ON WHICH WILL CAN BE MADE:
A Will can be made on a plain paper. No stamp paper is required. Therefore, no stamp duty is required to be paid on a Will.
- IS NOTARIZATION OF WILL REQUIRED?
Notarization by Notary Public or Attestation by an Oath Commissioner is not required.
- IS IT MANDATORY TO GET A WILL REGISTERED?
It is NOT mandatory to get a Will registered, but it is always advisable to get the Will registered.
- PROCEDURE FOR REGISTRATION OF WILL:
A Will can be registered at the office of the Sub-Registrar.
(In Delhi, online appointment has to be taken for the registration of a Will with the office of the Sub-Registrar. At the date of appointment, the Testator and the Executing Witnesses are required to be present at the office of the Sub-Registrar along with one ID Proof and Passport-size photograph).
- CAN A WILL BE REGISTRED AFTER DEATH OF THE TESTATOR?
Yes, the registration of Will even after death of the Testator is possible. (Section 40 of the Indian Registration Act, 1908)
- CAN A WILL BE ALTERED OR REVOKED?
As per Section 62 of the Indian Succession Act, 1925, a Will can be altered or revoked by its maker anytime. A Will takes effect only after the death of the Testator and does not create any right in favour of any person till the death of the Testator and, therefore, the Testator can alter or revoke the Will anytime. A Testator can even discard the Will executed by him completely and make an entirely new Will or he can alter the Will in respect of certain portions of dispositions made under the Will. As a result, even after registration of Will, the right of the Testator to revoke or alter the Will is not affected.
- WHAT IF A PERSON MAKES A SECOND WILL WITHOUT REVOKING THE FIRST WILL?
In such a situation the latter, that is, the second Will would prevail over the first Will. In other words, the Will made last in point of time has precedence over the Will(s) made earlier in point of time and, hence, the distribution of the Testator’s assets will take place in accordance with the Will made last in point of time.
- IS TEHRE ANY LIMIT TO NUMBER OF WILLS THAT A TESTATOR CAN MAKE?
There is no limit to the number of Wills a Testator can make. A testator can make any number of Wills. However, the distribution of assets of the Testator will take place according to the last Will, that is, the Will made last in point of time.
- IS IT MANDATORY TO GET SECOND/SUBSEQUENT WILL REGISTERED IF FIRST/EARLIER WILL WAS REGISTERED?
As registration of Will is optional, therefore, registration of second/subsequent Will is not mandatory even if the first/earlier Will was registered. However, it is necessary to take into consideration some practical aspects. If the first/earlier Will is registered and second/subsequent Will is not, then it can mislead a person who may, by relying upon the registered Will, stake a claim as per the disposition in the registered Will. The executor or beneficiary will then have to establish that first/earlier Will was revoked and second/subsequent Will was executed. Hence, it is advisable to get any second/subsequent Will registered if the first/earlier Will was registered.
- WHAT PROPERTY CAN BE BEQUEATHED BY A WILL?
Any property, whether movable or immovable, can be bequeathed by Will. The only requirement is that the Testator must have interest in the property that he intends to bequeath by way of Will. The following are few examples of the properties that can be bequeathed by a Will – House, Land, Factory, Car, Jewellery, Insurance Policy, Fixed deposits, etc.
SOME RELEVANT DEFINITIONS
TESTATOR: Testator is a person who makes a Will.
EXECUTOR: Executor is the person who takes out the distribution of assets of the Testator according to the Will. The Executor is considered to be the legal representative of Testator in law and he holds the property of the Testator as trustee till its distribution among the legatee/beneficiary.
LEGATEE/BENEFICIARY: Legatee/Beneficiary is a person who inherits the property under a Will. In other words, he is the person in whose favour a Will is executed.
