Legal Agreements

Complete Understanding of Making a Will

Overview

Certain events in life are not avoidable. One of them is death. It is one of the certainties of life. The best way to prepare for it is by making a will. A will is an essential tool that will determine where and how your possessions shall be used after your death. Creating a will could be a complicated task. It is imperative that one has at least the basic understanding of the Will. This article intends to shed light on the various vital aspects with respect to making a will. Before we go any further let us understand what a will actually means.

Meaning of Will

A Will means a legal declaration from a person specifying his intention regarding his property and possessions that he wishes to take effect after his death. It is an instrument through which a person disposes of his property that will take effect after his death. A will or testament is a legal document through which a person decides as to how his property is to be distributed following his death. The Will may name people to manage the property until it is distributed. 

The Last Will and Testament is a legal document wherein a person shares his intention, whether he wants to give it to some person or if he wants to donate them to a charity and he also outlines what to do with other things that he is responsible for.

Who can make a Will?

A person who is of sound mind and is not a minor can make a will according to the Indian Succession Act 1925. A person who is the only owner of a self-acquired property can give the same by way of Will. There are a class of persons who cannot make a will. These are minors, insolvent or persons disqualified under the law by the court. If a will is executed by a person who is a minor, such Will shall be void. However, a testamentary guardian can be appointed to dispose of the property. A Will can be made by a deaf and dumb person by expressing his consent in writing or gestures.

What is the importance of making a Will?

A will document acts as an inventory of the assets that have been left behind by the deceased. A will that is clearly and well-drafted shall help in avoiding unnecessary arguments among the heirs. Making a will can be more significant if a person intends to distribute his possessions among people apart from the natural heirs.

Making a will makes it easier and efficient for your family to dispose of the property in an efficient manner else it could be stressful and unorganised. A will shall ensure that your possessions are distributed to your family members or anyone whom you want to share with. It may also lower the inheritance tax amount that may be payable on your possessions.

Essential Points to be kept in mind while making a Will

• The details of the Testator are a must for making a will. Testator means the one who makes a will. The details shall include the name, age and address details of the person making the Will.
• A Will is a legal declaration. It is an instrument through which the Testator makes a declaration considering his possessions. It is not an agreement, contract or a settlement. It is an essential ingredient of a Will. Such a declaration made in the Will must be legal, and if it is an illegal declaration in any way, it will not be called a Will.
• It is crucial that a will must clearly express the intentions of the Testator. Basically, a Will is a declaration of the intentions of the Testator. A Will must contain the intention of the person making the Will with respect to future and not present. If a Will narrates only the present state of affairs, then it would not be called as a Will.
• While making a Will, it’s essential to enumerate certain details clearly. It must clearly specify the details of the possessions or the property that the Testator wants to distribute to his beneficiaries. Other details like the registration number, the description, date of registration and whether it is a moveable property or not, the details of such property must be explicitly mentioned. Another thing to note here is that the property or the possessions mentioned in the Will must belong to the Testator because it goes by the principle that you can give only the thing that you have therefore it is important that the Testator has the ownership or the rights over the property for which he is making a Will.
• Another detail to be included in the Will is regarding the details of the beneficiaries. In some cases, there may be more than one beneficiary; therefore, the details of all of them and the relationship of such beneficiaries with the Testator must be specified.
• An executor is also an important person who is responsible for implementing the Will after the demise of the Testator. The Testator shall appoint an executor to his Will for such purpose.
• In case the Testator intends to bestow his property to a beneficiary who is not an adult, then he shall appoint a guardian who shall be responsible for taking care of the minor’s property until the minor becomes an adult.
• The Testator must sign the Will, and the date must be clearly mentioned in the document. The sign of the Testator is essential while making an unprivileged will. There are some states that allow for someone else in place of the Testator to sign the Will provided it is with the consent of the Testator. However, it more advisable that the Will be signed by the Testator in order to avoid any future contingencies.  
• If a testator intends to give a property that is jointly held or any ancestral property which is common to the other members, then such a will cannot be executed, and it shall be void.

What is the principle followed by the Court with respect to the Will?

There is a principle that is followed that states that the intention of a testator must be decided after construing the Will as a whole and not just by the part of it. The Supreme Court had clarified that the cardinal maxim observed by the courts should be the intention of the Testator behind the Will, and it shall be done by reading the document as a whole. The court cannot assume what the Testator could have intended. It shall interpret according to the implied or the express intention of the Testator from the Will.

The apex court, in Navneet Lal vs. Gokul and others, held that the court must take into account the circumstances, the position of the Testator and his relationship with the family members etc. that would aid the court in ascertaining the intention of the Testator. 

Documents for making a Will

The key documents required for making a Will are enumerated below.

• All the documents related to your property
• Documents like birth, death, marriage and divorce certificate
• Insurance policy numbers
• Deeds and mortgages
• Bank account number

Kinds of Wills

Privileged Will

A privileged will can be made only by some specific people. These include soldier or airman employed in an expedition or who is engaged in warfare and a mariner at sea. The privileged Will can be in writing, or it can be orally made. A written privileged will by the Testator does not need to be signed. If a privileged will is signed by the Testator, it does not need attestation by a witness.

A privileged will is a special will which is made in exceptional circumstances like war or dangerous expedition.

Unprivileged Will

A person who is not eligible to make a privileged will can only make an unprivileged will. There are some essential ingredients for an unprivileged will. These are that it must in writing and signed by the Testator in the presence of witnesses. It shall be signed by two or more witnesses in the presence of the Testator. 

One of the essential ingredients of making a will is an attestation by two or more witnesses. A person may take any plain paper and thus write a will with their own hands without any assistance of a legal professional. A will made in one’s own writing is known as Holograph Will.

Oral Will

The legitimacy of oral wills is only in a few states and under limited circumstances. Oral wills could be a result of fear of death, and such Will can be used to dispose of personal property. These kinds of wills are unusual and uncertain. It would be more advisable, while making a Will, to make a formal will than an oral will.

Formal Will

Every state provides the provision of allowing a person to make a will by way of typing and signing the document themselves but with two witnesses. Such Will must be made by a person of sound mind and by a person who is not a minor. Through such a will one can transfer his or her property, name guardians for children, name an executor etc.

Mutual Will

A mutual will is also called a reciprocal will or a mirror will. Mutual wills are two different wills that are mirrors of each other. This will provide the opportunity to the couples to leave their possessions for each other. However, the spouse may change their Will after the death of the first spouse.

Conditional or Contingent Will

A conditional will depends upon a certain condition. It means that the Will would only take effect when some conditions pertaining to such Will is fulfilled. It could be a future event like after attaining a certain age.

Statutory Will

A Will that has specific terms provided by the state law is known as the Statutory Will. Such laws were created by the states to allow people to write their own standard Will that can be recognised easily. Some of the states have provisions that are mandatory as part of the Will. In such states, the standard terms may not be explicitly written but are implied in the Will.

Is Registering a Will mandatory?

It is vital to know before making a Will that one can execute a Will on a plain paper and it shall still be valid even if it is not registered thus it is not mandatory to register the Will under law. However, in order to stamp its authenticity, one should contemplate registering their Will. It can be done by visiting the office of sub-registrar with witnesses.

Registration of a Will shall cause it to become legal evidence. It must be in writing and must be executed by a person of sound mind and without any undue influence.

Can a Will be challenged?

Yes, a Will can be challenged irrespective of the fact that it is registered or not. It can be challenged on the grounds of fraud, coercion or undue influence. If while making a will, any part of it or the whole of it has been fabricated or was made by fraud, coercion or with undue influence, such Will shall be void and will be set aside. A Will can also be declared void if the condition mentioned in the Will is impossible to be performed or if the conditions in the Will are illegal or immoral.

Implications of not making a Will

If a person dies without a Will, then he is said to have died intestate, and in such cases, the property of the deceased shall be inherited by his heirs according to the law of succession applicable to that person.

Revocation of a Will

A will can be revoked impliedly or expressly. The Will can be given to be revoked by the Testator. A testator can bequeath his property to a person by making a will and later he may sell off the property even during his lifetime. It is known as Implied Revocation. Apart from this, a will can be revoked expressly by the Testator.

Custody of Will

Once a will is executed, it shall be deposited in safe custody by the Testator. It could be placed with a person of his trust. If a person is not wishing to register his or her Will, he or she can deposit the same with the sub-registrar. The deposition of a Will is voluntary. The Will is deposited to keep the Will safe and to ensure that the beneficiaries will get it after Testator’s death.

Takeaway

Making a Will is not an arduous task as it may seem. A well-drafted Will has a number of benefits. It shall provide you with a sense of security considering your possessions that it will be taken care of even when you won’t be around. Apart from this, a valid Will shall take care of your family’s financial needs as well. It may reduce inheritance tax and shall keep your assets from being contested.