What is the Eligibility for Writing a Will & What are the Types of Wills?

Last Updated at: Oct 16, 2020
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writing a will
Will planning is important as the document always acts as an inventory of the assets the deceased has left behind. A simple and well-written Will often lets the natural heirs prevent any squabbling.

 

In India at least, ‘Will planning’ is hardly seen as a part of financial management. But before knowing the importance of a Will or its planning, let us first understand what it is.

 

The ongoing Covid-19 crisis has increased the risks associated with our lives. With the number of corona-infected cases rising in India, preparing a Will is something we should consider. It’s important to take legal help to get complete clarity on the content in the Will to lessen the chances of a legal dispute later.

 

Section 63 of the Indian Succession Act, 1925, mandates that the creator (testator) of a Will must sign/affix his or her mark on the will. The signature /mark must be placed in such a way so that it discloses clear intention of the creator to give effect to what is written in the Will.

 

A will need not be made just before a person’s demise. The person can plan his/her will well in advance. For the question, is it mandatory to register a will, the answer would be ‘Yes’, depending on your scenario. To start with, let’s understand what a will is and what’s its purpose. A will is a written expressed wish of the writer of the will about how he or she wishes to distribute his or her property after their demise. This property, however, is limited only to self-owned assets and excludes ancestral property. Let us see more about writing a will and its types,  its eligibility criteria. And also whether will is required to be registered as well.

Types of wills

There are different kinds of wills to cater to different needs and situations. Let’s look at what is privileged will and unprivileged will along with the validity of unregistered will, validity of oral will in India, etc.

Privileged will

This kind of will is only for a privileged lot of the population comprising personnel from the armed forces from the air force, army and navy. This will maybe be a writing format or an oral one. If written (completely or partly) by the testator, it need not be signed.

If someone else writes it and without any signs of the testator, it is valid if it can be a proof that the writing was as per the testator’s wishes.

In case the will is not executing as per the wishes of the testator, it shall not be invalid if it can act as a proof that some factor other than abandonment of intentions to execute the will was responsible for the same.

Prepare a will

The death of the executor before the execution of the Will will not make the will invalid.

If it’s an oral will, it requires two witnesses. Such a will can be rendered invalid if the testator is no more qualified to make a privileged will within a month (in case he or she is still alive).

Also, the privileged will may be revoked by a letter will, which may even be an unprivileged will. Revoking a privileged will can simply involve physical methods like tearing the sheet, burning, etc.

Unprivileged will

As the name suggests, all those who don’t fall the category of armed forces personnel, i.e. civilians, can make an unprivileged will.

An unprivileged will has to be signed or attested in all forms, unlike a privileged will.
The signature or the attestation of the witnesses and the testator of the will should be such that there should be no doubt about the reason for the same.
This basically means that the signature should be clear. And should be clearly visible to give legitimacy to the will.
You also require two witnesses.
Both the witnesses do not need to be in each other’s presence during the process of signing.

Who is eligible on writing a will?

According to the Indian Succession Act, 1925, any adult of a sound mind can be writing a will. However, this act excludes Muslims as their laws are mostly governing under Muslim Personal Law.

A married woman is also eligible for writing a will if she can isolate the property solely belonging to her. But not by anyone whom she may be dependent i.e. husband or parents.

Having visual or hearing impairment does not incapacitate you from writing a will.

Any person under a state of intoxication (voluntary or involuntary), illness or any similar cause cannot make a will.

Will Registration, is it mandatory?

While it’s advisable to register one’s will, especially if you perceive future disputes, registration of will is not mandatory. Now, let’s look at the difference between registered will and unregistered will. The registration, however, gives it legal validity. It may also be noted that if a will is not registered it doesn’t mean it cannot be executed. The unregistered will is perfectly valid. However, if you intend to register the will, here are the steps that need to be followed

You will have to register the will before the Sub-Registrar or the Registrar of the district court under whose jurisdiction a major part of the property lies.
In all normal or ordinary cases, the registration process has to be in the offices of the Registrar or the Sub-Registrar. But, in special cases, Section 31 of the Registration Act provides an exception.
The section states that the “officer may on special cause show to attend at the residence” for the registration process of the will.
The cause may be ill health, impending the death and other such situations.
The Registrar has the responsibility to examine the document carefully and make sure no legal errors are there in the same before signing on the registration.

Execution of the will

Whether the will is registered or unregistered, probate proceedings have to be initiated in the district court or high court of appropriate jurisdiction.

The court will study the will and make sure that the will has been made by the due process of law.

The court will let the executor deal with the estate. And distribute the same as per the provisions in the will.

If the testator has not appointed an executor, the court shall appoint an administrator to do the same.

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