Will

LAWS RELEVANT TO WILLS:

India has a well-developed format of succession laws, which administer a person's property after his death. The Indian Succession Act, 1925 applies expressly to wills made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians, but not to Mohammedans, as they are largely covered by Muslim Personal Laws. These are the list of laws with respect to succession laws:

• The Indian Succession Act, 1925
• Hindu Succession Act, 1956
• Muslim Personal Laws

According to Indian Succession Act, 1925, a will is defined as follows:

"A Will is 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."

Assumptions of a will are as follows:

• Legal declaration: A Will is a 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. It must be signed and attested, as required by law.
• Disposition of property: The declaration should relate to disposition of the property of the person making the Will.
• Death of the Testator: A will becomes enforceable only after the death of the testator. It gives absolutely no rights to the beneficiary of the will, until the death of the testator. It has no application during the lifetime of the testator. The testator can change his will, at any time prior to his death, in any manner he deems fit.
• Revocability: The essence of every Will is that it is revocable during the lifetime of the testator.

PERSONS COMPETENT TO MAKE A WILL:

According to Section 59 of the Indian Succession Act:

• i) Any person of sound mind;
• ii) Any person, who has attained the age of majority.
• The following persons cannot make a will legally:
• i) Lunatics, insane persons,
• ii) Minors, a person not attained 18 years of age.

A person, who is ordinarily insane, may make a will during an interval, when he is of sound mind. No person can make a will, when he is in such a state of mind that he does not know what he is doing. (E.g. intoxicated, illness etc.)

EXECUTOR & WILL:

An executor is the person appointed by the testator by his will:

• To administer testator's property,
• To execute the provisions of the will.

WILL & ATTESTATION:

• The testator should sign or affix his mark in the will, or another person should sign it in testator’s presence and in accordance with his direction.
• The signature or mark of the testator or the signature of the person signing on behalf of him should be clear, legible and makes the will legal.
• The will should be attested by two or more witnesses and each of whom has seen the testator signing or affixing his mark to the will or has seen other person signing the will, in the presence and as per the direction of the testator.
• The witnesses should sign the will in the presence of the testator.

EXECUTION & WILL:

• After the death of the testator, an executor of the will or an heir of the deceased testator can apply for probate (A probate is the copy of the will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a will.)
• The court will ask the other heirs of the deceased regarding any objections to  the  will.
• If there are no objections, the court will grant probate.
• If there are any objections raised by any of the heirs, a citation has should be served, calling upon them to consent. This should be displayed prominently in the court.
• And if no objection is received, the probate will be granted.

PROCESS OF WILL-REGISTRATION:

• Will should be registered with the registrar/sub-registrar with a registration fee.
• The testator must be personally present at the registrar's office along with witnesses.
• Signature of the registrar: The approval by the registrar is sufficient to prove the execution of the will.
• 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.

FORMS & LANGUAGES OF A WILL:

1) Form of a Will:

• There is no prescribed form of a Will.
• In order for it to be effective:
  • The Will needs to be clearly signed and attested.
  • The Will must contain the initials of the testator at the end of every page and next to any corrections or alterations.

2) Language of a Will:  

• A Will can be made in any language.
• No technical words should be used in a Will.
• The words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.