What is a WILL?

Legal definition-Under the Indian Succession Act 1925

Section 2(h) a Will is a legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death.

Meaning– Will is the best medium through which a person can ensure that his property is divided as per his desire after his death.

After the death of a person, his property devolves in two ways – according to his Will i.e. testamentary, or according to the respective laws of succession, when no Will is made. In case an individual dies intestate (no Will is made), the laws of succession come into play.

Enforceability– A Will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator. It has no effect during the lifetime of the testator.

A testator can change his Will, at any time, in any manner he deems fit. Every person of sound mind, and not a minor, can make a Will. If a person is of unsound mind at the time of making a Will, the Will is not enforceable. If a testator intends to make a few changes to the Will, without changing the entire Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will.
One must note that a Will or codicil is alterable or revocable. They can be altered or revoked at any time.

Validity-A Will, obtained by force, coercion or undue influence, is a void Will as it takes away the free agency of the person. A Will, made under influence of intoxication or in such a state of body or mind, sufficient to take away free agency of the testator, is void.

When a Will can be made – A Will can be made at any time in the life of a person. There is no restriction on how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable. A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.

Registration – Though the registration of a Will is not compulsory, it can be registered with the sub-registrar. If, at any time, the testator wishes to withdraw the Will, he can do so. A Will also can be sealed and kept in safe custody.

Execution – On the death of the testator, an executor of the Will or a heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will.

If there are no objections, the court will grant probate.

A probate is a copy of a Will, certified by the court, and is conclusive evidence that the Will is genuine.

In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. It is only after this that the Will comes into effect.

Essential Elements of Will

It is important to remember that a will need not be drafted in legal language. It can be drafted in simple language but the intention of the parties need to be clear. There must not be any ambiguity. Secondly, it is not important to have a will on non-judicial stamp paper. It can be drafted on a simple white paper. To have a legally valid will, one needs to have following clauses in their will-

1. Personal Details – one has to clearly give his personal details in the will. One has to specify details like son/ daughter of, residential address, age, date of birth, etc.
2. Declaration of Date – the date on which the will is being prepared has to be mentioned. It helps the court to identify the last and the valid will, in the case of multiple wills.
3. Validate Free Will – one has to clearly state that he is making the will with his free consent. He has to specify that there is no undue influence or coercion or pressure under which he is writing the will.
4. Provide Executor’s Details – an individual needs to nominate an Executor in his will. The Executor is the person who is responsible for executing the will. Along with providing the executor details, the testator should add a clause describing what would happen if executor dies before the testator.
5. Details of Assets– one can dispose of movable and immovable property through a will. The testator has to give details of all kinds of property that he wants to dispose of. In the case of immovable property like house, land, etc. he has to give a proper address. In the case of movable property like bank deposits, mutual funds, share, etc. he has to give authentic identification numbers. The testator should also specify the mode through which income generated from these assets would be distributed to the beneficiaries.
6. Liabilities of the Testator – testator should specify any liability that he owes and the mode of settling that liability through his assets. He should also specify the mode to settle probate charges and executor fees.
7. Name of the beneficiary(ies) – the testator has to mention the name and some personal details of the beneficiary so that the court can identify the individual. The testator can describe the relation like my wife, my son, my daughter, etc. In case, where the beneficiary is a minor, the testator should specify the legal guardian of these minors. In case, where the beneficiary is a daughter, the testator should specify different situation regarding her marital status.
8. Signature – testator has to sign the will at the end.
9. Signature of Witnesses – there is a requirement of getting the will tested by two witnesses. The testator has to specify the father’s name and the residential address of the witnesses.

One can also include codicil to make amendments or to alter the will. The testator can change the beneficiary, executors, assets, liabilities, etc. by adding codicil in the will. The court interprets will and codicil together to know the true intention of the executor.

Including all the above-mentioned elements would reduce the chances of ambiguity in the will. It would make it easier for the executor to obtain probate. Probate is essential to execute a will and codicil as discussed in next section.

Execution of Will

To execute a will, one needs to get a probate from the court with competent jurisdiction. Under the Indian Succession Act, only an executor can get a probate from the court. If there is no executor appointed in the will, an application for the appointment of executor has to be filled in the court. This application of appointment has to be filed before an application of Probate is filed.

Probate is a copy of will which has a court seal. It signifies that the will is the valid and the last will of the testator. An executor cannot execute a will without a probate if the immovable property in the will is located in Mumbai, Kolkata, and Chennai. To obtain a probate following steps has to be followed –

1. Application
   The application of probate is filed by the lawyer. It has to be filed in the court which has the competent jurisdiction. In case, the value of properties mentioned in the will is very high, the case would be filed in the higher court.
2. Documents
   It has to be proved to the court that the testator has died. The lawyer has to prove the validity of the will i.e. it has to prove that it was the last will and that it was by the free consent of the testator.
3. Notification
   After the application is filed, the court notifies the posterity of the testator and the general public (through newspaper). It is to ensure that they have an opportunity to file an objection against “granting of probate”.
4. Fees
   The parties have to pay a probation fee which generally depends on the valuation of assets mentioned in the will.

After receiving the probate from the court, the executor will execute the will. He will transfer the assets in the name of a respective beneficiary.

Sources:

• Drafting , execution & basic elements by Shruti agrawal (Lawfar)
• Rules governing transfer of property by Economic times
• Others by Indian Succession Act, 1925