Will is a legal declaration of the intention of a testator with respect to his property, which he desired to be carried into effect after his death.
In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. It is testamentary instrument by which a person makes disposition of his property to take effect after his death, and which, is its own nature, is ambulatory and revocable during his life. Thus
A will can be changed by the deceased person (testator) and when he so likes. It is a secret and confidential documents. If we talk in a more absolute sense, will is a general term while Testament is disposition of personal property.
Will have the following characteristics attached to it:
Will or a Testament must be in conformity with the law and also be made by the person who is legally competent in this field.
It must be intended to come into effect after the death of the testator.
Will must be revocable by the testator at any time, section 63 of the Indian Succession Act. 1925 provides that a Will is liable to be revoked of altered by the maker of it at any time when he is competent to dispose of his property by will.
The declaration should relate to disposition of the property of the person making the will.
The declaration as regards the disposal of the property must be intended to take effect after his death. When a person dies without having made a will, he is said to have died intestate. In accordance with the law of inheritance applicable to him, his property then automatically comes into the lab of his legal heirs who are generally close family members such as one’s spouse, children, parents brothers and sisters. In other words, in case of absence of will the property would be dealt with as per the laws of inheritance. For Hindus, Buddhists Jains and Sikhs, the laws of inheritance have been codified in the Hindu Succession Act, 1956. For Christians the Indian Succession Act,1925 will be applicable. Parsis and muslims both have different laws in respect of inheritance of property. This has, however, not been codified any legislation but is based on their religious texts. Even the major sections of Muslims Shias and Sunnis, both have different personnal laws. Any person can have a will except the person who is minor in age, does not have a stable mind or who is fraud or corrupt in his dealings. There is no prescribed form for the will but in order to be effective, it needs to properly signed and attested. Will must be in simple and clear language so that the purpose of the testator is reflected in his will.
Registration of Will
A will is to be registered with registrar in return of the payment of nominal fee. Here, the WILL is kept in safe custody and therefore, cannot be destroyed, tampered or stolen by anyone. While registering, the testator must be himself present at the Registrar’s office along with witnesses. However, it is not necessary to register WILL but if registered by the testator himself which automatically evidences the authenticity of the WILL. Also, registration of a document serves as proof 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.
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. However, it is important to note that according to Christian and Parsi law, a legatee who is actually the person inheriting the property, cannot be a witness. But in Muslim law, it is not necessary for a Muslim person to get his will attested if it is in writing.
There is myth about WILLs that WILLs are always effective after death, never in the life time of the testator. But contradicting this statement, section 63 of the Indian Succession Act, 1925 provides that a WILL is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by WILL. Therefore, revocability is the most essential characteristic of WILL.
A person who owns a WILL has the right to revoke, change or alter it anytime. He can execute this right 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 but this, however, does not apply to Hindus, Sikhs, Jains and Buddhists.
Types of will
Simple will: a will that just provides for the outright distribution of assets for an uncomplicated estate.
Testamentary trust will:
A will that sets up one or more trusts for some of your estate assets to go to after you die.
Wills executed under section 66 of the Act, by a soldier employed with in an expedition or engaged in actual warfare, or by an airman so employed or engaged, or by mariner being at sea, are called Previleged Wills.
Wills executed according to the provisions of section 63 of the Indian Succession Act are called Unprevileged Wills.
One document that covers both a husband and wife (or any two people). Joint will is intended to take effect after the death of both and will not be enforceable during the life time of either. Joint wills are revocable at anytime by either of the testators during their joint lives, or after the death of one, by the survivor. There are often a big mistake and are especially inadvisable for estates larger than $675,000.
Duplicate wills: sometimes, the testator may make a duplicate will for the purpose of safety, one which is kept by him while other kept in the safe custody of bank or trustee or registrar. It is to be noted that if the testator destroys the will which is in his custody, also accounts for the revocations of the duplicate copies as well.
Generally, a person leaves only one will at the time of his death but sometimes, a testator may make two or more wills for the sake of convenience, disposing of some property in one country by one will and the other properties in another country by a separate will.
In simple terms it is a will which is written entirely in the hardwriting of the testator and is not attested by any witness.
Oral will or nuncupative will:
A will that is spoken, not written down and are recognized by only few states. Besides the above mentioned wills, there are some more wills like Sham Wills, Pour over Wills, Mutual Wills etc. Also, in respect of Previleged and Non-Previleged Wills, the Indian Succession Act, 1925 seems to make a distinction between the execution and the making of wills. As section 63 of the act refers to the execution of unprivileged wills, while section 66 prescribes the mode of making and rules for executing privileged wills. The comparison seems to be debatable one as execution applies to cases where the will is to be reduced to writing. Whereas the expression making of a will includes the execution of a will and also an oral declaration by the testator of his testamentary disposition of his estate, if such declaration legally amounts to a will.
Importance of Will
As stated above this in case a person does not possess a will, then his property will be inherited by legal heirs in accordance with the laws of inheritance applicable to him. However, most of the people would like to dispose of their property according to their own wishes. Thus, there arises the need for making one’s will. As when a person dies without having made a will, there is often confusion amongst the family members and relatives as to whether the deceased did make any will prior to his death or not, but if a will is available, the only question that arises is whether it is the last will of the testator.
Will being a personal document, is an expression of the relationship with the members of family or relatives, etc. the views, opinions and feelings, etc., are indicated in this document. As sometimes when a person dies, there occurs conflict or dispute among the family members as to who will have the property and in what share will it be distributed. So the presence of will provides with all such information and thus, helps in resolving such disputes over inheritance or distribution of property. It will not be out of place to mention the bickering of Late Mrs. Indira Gandhi and her daughter-in-law Maneka Gandhi, who were involved in a litigation concerning the assets of the late Sanjay Gandhi. The possibility of any dispute surfacing between the mother and his wife would have been very far, if Sanjay Gandhi had left the will behind.
By means of a will, one can appoint in writing, a testamentary guardian (person appointed by a will) for his infant children. There are cases when a parent dies, then the surviving natural parent automatically becomes the guardian under the law. But in case, there is no surviving natural parent, the law attaches great importance to the will of a parent in deciding whom to appoint as a guardian.
In some special cases, will is supposed to play a very important role. For instance, if a father has two sons, one is healthy and the other one is handicapped since childhood. The laws of inheritance states that both of them should be treated equally. But by means of a will, one can have somewhat greater provision for a handicapped son. Nevertheless, by means of will, one can even make provisions for a faithful servant, a nurse, a friend in need of money, and so on. However ,all such people could never receive any benefit whatsoever under the laws of inheritance in the absence of a will. Also, absence of a will can give the privilege to the most unwanted son, who had left the house for disobedience, fraud, violence, etc. to claim his share of estate from his father’s property. Similarly, an adulterous wife might demand her share as per inheritance laws.