In this article we shall discuss the various aspects of a will, the different types of wills and why it is imperative for everyone to draft a will.
Introduction :
Almost everyone is familiar with the general idea or concept of a will. We know it is a written statement made by a person expressing how one would like his or her assets to be distributed in the event of one’s death. And yet, several people die every year without a will causing family feuds and disputes. Family courts are filled with property disputes due to a lack of a will or a lack of clarity in the will. In this article we’ll discuss about the eligibility of a will & the types of wills.
A will need not be made just before a person’s demise. The person can plan his/her will well in advance. In fact the process of drafting a will pushes a person into addressing the tedious task of planning their long term finances and of course, face the idea of mortality. This may also be the reason why many people put off drafting the will under the presumption that they have ample time to do so.
One can draft a Will by hand or type it out. It should contain clear information about personal and family details, property, beneficiaries, and witness information. It is important to ensure that the Will is created under sound mental capacity, without any external pressure, fear, or coercion.
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 its purpose is. Let us see more about a will and its types, its eligibility criteria. And also whether will is required to be registered as well.
In this article we shall discuss all aspects of wills in detail in the hope that the idea of a will doesn’t seem as morbid and cumbersome as it has been made to appear. It is merely a document that you keep in place to account for all the assets in your possession at any given point of your life and what you would like to become of them in the event of the inevitable.
Types Of Wills
There are different types 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 types of wills 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 in a written 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 note 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.
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 in the category of armed forces personnel, i.e. civilians, can make an unprivileged will.
This types of wills 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?
According to the Indian Succession Act, 1925, any adult of a sound mind can be note a will. However, this act excludes Muslims as their laws are mostly governed under Muslim Personal Law.
A married woman is also eligible for write down a will if she can isolate the property solely belonging to her. But not by anyone whom she may be dependent on, i.e. husband or parents.
Having visual or hearing impairment does not incapacitate you from a will.
Any person under a state of intoxication (voluntary or involuntary), illness or any similar cause cannot make a will.
Registration Of A Will
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 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 online 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.
Conclusion
Making a will is voluntary. But making it almost amounts to a duty to one’s self. No one has control over their death. But one can exercise some amount of control over what happens to their legacy after they have died. And what a person owns when he dies is the only tangible measure of the person’s achievements during their time on earth. Knowing that the legacy is passed on to someone who will preserve it is the only way to live on even after death. And that is the whole objective of making a will. If you have any queries regarding drafting a will or require assistance in drafting a formal will, do get in touch with us and our team of legal experts will be happy to assist you with your requirements.
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