Will In India

According to the Indian Succession Act of 1925, anyone who is of sound mind and who is not a minor can make a will.

One can make a legal declaration known as a Will or testament to name an executor who will manage their estate and ensure the transfer of their property to the intended recipients after their death. The person making the Will in India, known as the testator, must be at least 21 years old to do so in India.

A will is a legal declaration a person makes about how they want their property managed or distributed after their death. Although a will is a legal document, there is no set format in which it must be written. A will, for example, does not have to be written on stamp paper and can be typed or handwritten. A handwritten will, however, is preferred since it is more difficult to discredit.

Making a Will in India  should be a voluntary act, made by someone with testamentary capacity, sound disposing mind, knowing what the Will includes, and free of undue influence, fraud, or coercion.

Essential Elements and Steps of Making a Will

In spite of the fact that a will does not have to follow a certain format, it is advisable to follow a template prepared by a legal professional. In this way, you will ensure that all of the legal requirements are included in your will,making a will is clearer, more reliable, and more difficult for anyone to contest. 

A will should include the following elements and particulars:

Declaration: You should preface your will by proclaiming that you are of sound mind. After that, you must proceed by naming the person who you want to be your executor. If this is not your first will, you should make a statement revoking all previous wills and codicils.

List of your assets: Following that, make a list of all your assets. This should include any property you own as well as any money in your savings accounts, fixed deposit accounts, and mutual funds. This list can be time-consuming and tedious to compile. It’s a good idea to go over it a few times to ensure you haven’t overlooked anything.

Division of your assets: Next, specify who will receive which asset. Going item-wise will help remove any ambiguity. If you wish to give your assets to a minor, don’t forget to appoint a custodian of the assets. It’s important to select someone you trust as a custodian.

Witness signatures: Now sign your will in the presence of two witnesses. Your witnesses will have to certify that the Concurrent Wills was signed in their presence. Remember to mention the date and specify your witnesses’ full names and addresses.

Initial on each page: The date and location must be put at the bottom of the will. You and your witnesses must sign each page of the will. You and the witnesses must countersign any changes to the will.

Storing the will: Make sure you store your will in a safe place. Copies, if made, should be stored separately from the original will.

Wills in India: Jargon, Explained

Here are the legal terms you must keep in mind when making a will in India:

• Intestate is when a person dies without leaving behind a valid will. There are laws governing intestacy to determine how your assets are distributed, which mutual wills differ depending on your religion.
• Testator: A person who makes and executes a will is called a testator.
• Beneficiary/Legatee: The person or organization to whom you bequeath your assets in your will.
• Executors: The individuals you appoint to administer the distribution of your assets. You may appoint up to four executors. It’s generally a good idea to name more than one executor if one passes away.
• Probate: The legal document to be obtained by the executors after your death to obtain the authority to handle your assets.
• Administrator: A person who deals with the division of your assets if you haven’t left behind a will.
• Codicil: A legal document which amends or adds to a will. For a codicil to be valid, it has to be written and executed in the same way as the duplicate original wills it seeks to amend.

Types of Wills in India

The Indian Succession Act of 1925 recognizes two main categories of wills:

• Privileged Wills: These wills are made by individuals in exceptional circumstances, such as soldiers employed in an expedition or engaged in actual warfare, airmen in active service, or mariners at sea. Such wills can be written or even made orally, and less stringent formalities are required for their validity compared to unprivileged wills.
• Unprivileged Wills: These are the most common type of wills and are made by people in ordinary circumstances. They must be in writing, signed by the testator (person making the will) in the presence of two witnesses who also sign the will.

Few other types of wills are recognized in practice and by courts in India, even though they’re not explicitly mentioned in the Act. These include:

• Conditional or Contingent Wills: These wills take effect only if certain conditions are met.
• Concurrent Wills: Separate wills are prepared by one person to deal with different sets of properties, for example, one for movable and another for immovable assets.
• Mutual Wills: Reciprocal wills made by two people, usually spouses, where they agree on how their combined assets will be distributed after both their deaths.

Differences between Privileged and Unprivileged Wills

The key differences between privileged and unprivileged wills are

• Formalities: Privileged will require fewer formalities (writing not mandatory, oral declarations allowed) due to the exceptional circumstances of the testator. Unprivileged will need to be written and signed with witnesses.
• Mental Capacity: For unprivileged wills, the testator must be of sound mind to make the will valid. In contrast, privileged wills can be made even if the testator is not of sound mind, provided they’re made during war or in imminent danger of death.
• Revocation: Privileged wills are automatically revoked if the testator survives the circumstances that led to the special privileges. Unprivileged wills can be revoked through a new will or the destruction of the old one.

Importance of a Valid Will

Having a valid will is crucial for several reasons

• Ensures your wishes are followed: It allows you to decide how your assets will be distributed after your death, preventing disputes and uncertainties among your loved ones.
• Clarity and certainty: A valid will provides a clear legal document outlining your wishes, simplifying the probate process and minimizing potential legal conflicts.
• Protects your loved ones: It empowers you to provide for your dependents and ensure their financial security after you’re gone.
• Minimizes stress and conflict: With a clear will, your family doesn’t have to endure the emotional and legal complexities of intestacy (dying without a will), where the law decides how your assets are distributed, not your wishes.

When is a Will Invalid?

The burden of proving that a is valid is placed upon the party putting forward the will. The Court must be satisfied that it is the last will of a free and capable testator. But, who is a free and capable testator?

What disqualifies a person from making a valid will? Let’s find out:

Every person of sound mind, not being a minor, may, of his/her own volition, dispose of his/her property through a will. 

So this means that a will is valid if:

• The person creating a will should be of sound mind when making it. A lunatic or idiot can never create a will. However, a person with Alzheimer’s may create a will when he/she is lucid. Additionally, a person cannot create a valid will if he/she is inebriated at the time of its creation.
• A minor (a person below the age of 18) cannot make a will in India. A testamentary guardian is appointed to dispose of the property of a minor.
• If a will is created through coercion, it is invalid. This means that if a son or daughter coerces his or her parents into writing a will in their favour, the will is null and void.
• Anyone can write probate of will, which is frequently done without the assistance of a lawyer. As a result, many people are dispersing assets that may not really belong to them. A wife, for example, may dispose of a house under her husband’s name. Such a will is invalid.

FAQs on Will in India

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