Guide to Will and Testament

Last Updated at: April 06, 2020
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Guide to Will and Testament

Indian Succession Act, 1925 governs testamentary succession (Part VI). In case any person dies intestate, personal laws shall apply, otherwise, the Indian Succession Act also has rules for intestate succession, different for different religion. 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 follows:

“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 (a person making a will) before his death, where he expresses how he wishes his property to be distributed after his death.”

Some important terminologies 

    1. Intestate: If a person dies without making a will, he is said to have died ‘intestate
    2. Codicil:  Codicil is an amendment or change made in the original will. (Section 2(b) and Section 62 of the Indian Succession Act)
    3. 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.
    4. Probate:  Probate is certifying the validity of the will of the testator. It is necessary for the execution of the will. [2(f) of the Indian Succession Act]
    5. Testator or Testatrix: The person making the will and signing his or her name.
    6. Bequest or Bequeath: A bequest is a leaving property to someone. Bequeath is the verb for the bequest.

Make a will

What does a will contain? 

  • Introductory Statement 

This part is important in order to understand who the testator or testatrix is, where he is residing, what is his age at the time of the making of 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 subject-matter of a 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. Some examples of assets are Bank investments (savings account, current account, fixed deposit receipts, recurring deposit accounts) Financial Investments (stocks, debentures, bonds, mutual funds,) Immovable Property Personal assets eg: Jewellery Insurance like life insurance policies, retirement benefits, etc. Intellectual Property Rights. Liabilities are generally spread over two heads- loans and mortgages.

  • Identification of Beneficiaries and Executor: 

On the making of a will, one must clearly know who are the beneficiaries of the 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) 

MUST BE 

  • A Major ( At the age of 18 years or above)
  • Of SOUND MIND. An insane person in a lucid interval of sanity. 

CAN ALSO MAKE A WILL 

  • A person with a disability (impaired hearing, vision or speech). 
  • Foreigners and convicts.

CANNOT MAKE A WILL

  • A person who is intoxicated or ill to a level that hampers his comprehension. 
  • Corporate bodies.

WHAT ARE 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. No stamp paper is required, no notarization is required. Registration of a will is optional for the testator or testatrix, it is not a mandatory requirement under the law. A will can be revoked, by making a subsequent will the earlier will is automatically nullified.  A will can also be altered by executing codicils.

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Guide to Will and Testament

1404

Indian Succession Act, 1925 governs testamentary succession (Part VI). In case any person dies intestate, personal laws shall apply, otherwise, the Indian Succession Act also has rules for intestate succession, different for different religion. 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 follows:

“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 (a person making a will) before his death, where he expresses how he wishes his property to be distributed after his death.”

Some important terminologies 

    1. Intestate: If a person dies without making a will, he is said to have died ‘intestate
    2. Codicil:  Codicil is an amendment or change made in the original will. (Section 2(b) and Section 62 of the Indian Succession Act)
    3. 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.
    4. Probate:  Probate is certifying the validity of the will of the testator. It is necessary for the execution of the will. [2(f) of the Indian Succession Act]
    5. Testator or Testatrix: The person making the will and signing his or her name.
    6. Bequest or Bequeath: A bequest is a leaving property to someone. Bequeath is the verb for the bequest.

Make a will

What does a will contain? 

  • Introductory Statement 

This part is important in order to understand who the testator or testatrix is, where he is residing, what is his age at the time of the making of 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 subject-matter of a 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. Some examples of assets are Bank investments (savings account, current account, fixed deposit receipts, recurring deposit accounts) Financial Investments (stocks, debentures, bonds, mutual funds,) Immovable Property Personal assets eg: Jewellery Insurance like life insurance policies, retirement benefits, etc. Intellectual Property Rights. Liabilities are generally spread over two heads- loans and mortgages.

  • Identification of Beneficiaries and Executor: 

On the making of a will, one must clearly know who are the beneficiaries of the 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) 

MUST BE 

  • A Major ( At the age of 18 years or above)
  • Of SOUND MIND. An insane person in a lucid interval of sanity. 

CAN ALSO MAKE A WILL 

  • A person with a disability (impaired hearing, vision or speech). 
  • Foreigners and convicts.

CANNOT MAKE A WILL

  • A person who is intoxicated or ill to a level that hampers his comprehension. 
  • Corporate bodies.

WHAT ARE 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. No stamp paper is required, no notarization is required. Registration of a will is optional for the testator or testatrix, it is not a mandatory requirement under the law. A will can be revoked, by making a subsequent will the earlier will is automatically nullified.  A will can also be altered by executing codicils.

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A lawyer with 14 years' experience, Vikram has worked with several well-known corporate law firms before joining Vakilsearch.