All you need to know about Last Will and Testament

Last Updated at: January 13, 2020
446
All you need to know about Last Will and Testament

Indian Succession Act, 1925 governs testamentary succession (Part VI). In case any person dies intestate, their personal laws shall apply, otherwise, the Indian Succession Act also has rules for intestate succession, different for different religions. A Will takes effect only after the death of the testator. As per Section 2(f) of the Indian Succession Act, 1995 a Will has been defined as: 

“The Will is a legal wish of the person writing it, of how he wants his property to be distributed after his death. A Will is a document made by a testator (the person making the Will) before his death, where he expresses how he wishes his property to be distributed after his death.”

Let’s have a look at some of the important terminologies 

    • Intestate: If a person dies without making a Will, he is said to have died ‘intestate 
    • Codicil:  Codicil is an amendment or change made in the original will. (Section 2(b) and Section 62 of the Indian Succession Act) 
    • Executor: The executor is the person you select who will be in charge of distributing your estate according to your will after you pass. A female executor is sometimes called an executrix.
    • Probate:  Probate is certifying the validity of the Will of the testator It is necessary to execute the Will. [2(f) of the Indian Succession Act] 
    • Testator or Testatrix: The person making the Will and signing his or her name.
    • Bequest or Bequeath: A bequest is a property belonging to someone that they say that, after their death, they wish to be given to other people.  Bequeath is the verb for the word bequest.

Make a will

What does a Will contain? 

  • Introductory statement 

This part is important to understand who the testator or testatrix is, where he is residing, what is his age at the time of making the Will, and who all are in his family. Therefore, the essentials to be mentioned are: 

  1. Name of the Testator/Testatrix
  2. Father’s. Mother’s or Husband’s Name
  3. Age of the Testator/Testatrix
  4. Residence of the Testator/Testatrix 
  5. List of Family Members 
  6. Date of Execution
  7. Verification
  • Statement of assets and liabilities 

Assets and liabilities (Property) is the main context of the Will and thus at the very onset it is required that all assets and liabilities be stated descriptively, in order to know the net worth. You could mention all your assets like bank investments (savings account, current account, fixed deposit receipts, recurring deposit accounts) financial investments (stocks, debentures, bonds, mutual funds,) immovable properties like houses,  or personal assets like jewels, insurance like life insurance policies, retirement benefits, etc,. 

Liabilities are the money you owe to other parties which could be bank loans, mortgage debt, taxes owed, etc. 

  •  Identification of beneficiaries and executor: 

On the making of a Will, one must clearly know who are the beneficiaries for which property and who will be the executor of the Will. In most of the cases, the beneficiaries are given a part of the property. Therefore, it must be clearly mentioned which beneficiary is entitled to which property or a part thereof. 

What is Testamentary Capacity? (SECTION 59) 

Who can write a Will?

  • Any person who is a major, i.e., above 18 years of age  
  • The person must be of sound mind, memory and understanding. An insane person in a lucid interval of sanity cannot be a Will-maker
  • A person with disability (impaired hearing, vision or speech). 
  • Foreigners and convicts
  • A person who is intoxicated or ill to a level that hampers his comprehension cannot make a Will

What are the conditions for a valid Will? 

  • Signature of the Testator 
  • Attestation by two or more witnesses 
  • Where witnesses must not be beneficiaries under the will.
  •  Must not be obtained by fraud, coercion or undue influence.

A Will does not adhere to any particular format or does not require strict registration. There is no need for stamp paper and no notarization is required and can be written on a plain paper. Registration of a Will is optional for the testator or testatrix and it is not a mandatory requirement under the law. A Will can be revoked by making a subsequent Will and the one that was made earlier will be automatically be nullified.  A Will can also be altered by executing codicil, which is a supplement or addition explaining or modifying a Will or part of Will. 

All you need to know about Last Will and Testament

446

Indian Succession Act, 1925 governs testamentary succession (Part VI). In case any person dies intestate, their personal laws shall apply, otherwise, the Indian Succession Act also has rules for intestate succession, different for different religions. A Will takes effect only after the death of the testator. As per Section 2(f) of the Indian Succession Act, 1995 a Will has been defined as: 

“The Will is a legal wish of the person writing it, of how he wants his property to be distributed after his death. A Will is a document made by a testator (the person making the Will) before his death, where he expresses how he wishes his property to be distributed after his death.”

Let’s have a look at some of the important terminologies 

    • Intestate: If a person dies without making a Will, he is said to have died ‘intestate 
    • Codicil:  Codicil is an amendment or change made in the original will. (Section 2(b) and Section 62 of the Indian Succession Act) 
    • Executor: The executor is the person you select who will be in charge of distributing your estate according to your will after you pass. A female executor is sometimes called an executrix.
    • Probate:  Probate is certifying the validity of the Will of the testator It is necessary to execute the Will. [2(f) of the Indian Succession Act] 
    • Testator or Testatrix: The person making the Will and signing his or her name.
    • Bequest or Bequeath: A bequest is a property belonging to someone that they say that, after their death, they wish to be given to other people.  Bequeath is the verb for the word bequest.

Make a will

What does a Will contain? 

  • Introductory statement 

This part is important to understand who the testator or testatrix is, where he is residing, what is his age at the time of making the Will, and who all are in his family. Therefore, the essentials to be mentioned are: 

  1. Name of the Testator/Testatrix
  2. Father’s. Mother’s or Husband’s Name
  3. Age of the Testator/Testatrix
  4. Residence of the Testator/Testatrix 
  5. List of Family Members 
  6. Date of Execution
  7. Verification
  • Statement of assets and liabilities 

Assets and liabilities (Property) is the main context of the Will and thus at the very onset it is required that all assets and liabilities be stated descriptively, in order to know the net worth. You could mention all your assets like bank investments (savings account, current account, fixed deposit receipts, recurring deposit accounts) financial investments (stocks, debentures, bonds, mutual funds,) immovable properties like houses,  or personal assets like jewels, insurance like life insurance policies, retirement benefits, etc,. 

Liabilities are the money you owe to other parties which could be bank loans, mortgage debt, taxes owed, etc. 

  •  Identification of beneficiaries and executor: 

On the making of a Will, one must clearly know who are the beneficiaries for which property and who will be the executor of the Will. In most of the cases, the beneficiaries are given a part of the property. Therefore, it must be clearly mentioned which beneficiary is entitled to which property or a part thereof. 

What is Testamentary Capacity? (SECTION 59) 

Who can write a Will?

  • Any person who is a major, i.e., above 18 years of age  
  • The person must be of sound mind, memory and understanding. An insane person in a lucid interval of sanity cannot be a Will-maker
  • A person with disability (impaired hearing, vision or speech). 
  • Foreigners and convicts
  • A person who is intoxicated or ill to a level that hampers his comprehension cannot make a Will

What are the conditions for a valid Will? 

  • Signature of the Testator 
  • Attestation by two or more witnesses 
  • Where witnesses must not be beneficiaries under the will.
  •  Must not be obtained by fraud, coercion or undue influence.

A Will does not adhere to any particular format or does not require strict registration. There is no need for stamp paper and no notarization is required and can be written on a plain paper. Registration of a Will is optional for the testator or testatrix and it is not a mandatory requirement under the law. A Will can be revoked by making a subsequent Will and the one that was made earlier will be automatically be nullified.  A Will can also be altered by executing codicil, which is a supplement or addition explaining or modifying a Will or part of Will. 

FAQs

No FAQs found

Add a Question


No Record Found
SHARE