Conditional or Contingent Wills

Overview

Will and testament is a legal document by a person, called a testator, who states the distribution of their assets and possessions and also mentions the wish regarding the custody of minor dependents and management of accounts and interests. When a person wants a will to take effect only if a certain circumstance arises, they use conditional or contingent wills. The person would not want the will to take effect if the event didn't happen. These wills can be formally attested wills, which are signed by the testator and two witnesses, or they can be holographic, meaning they are entirely written.

Origin of Wills

It is uncertain where the term will first appear and how it spread among Hindus. Although the Mohammedans were well aware of wills, it is likely that interaction with them throughout the Mohammedan era and later with European nations led to the custom of replacing informal written or oral testamentary instruments with formal testamentary instruments.

What does a Will include?

When we talk about Will registration , then there is no specific form or feature, but this document must explain the intent of the testator and their wish regarding the distribution of the property. Hence, it must constitute the following:

• Details of property and assets owned by the testator
• Pointing an executor who will administer the asset
• Property or assets that will be inherited by children or trust or the ratio of distribution
• The shares of minors, till the time they become self-dependent
• Residual clause for the remaining asset.

Types of Wills

Different types of will exist in the Indian legal system; we have enumerated them below:

• Unprivileged Will

  This type of Will is created by a person who is not engaged in actual warfare or a soldier in an army or a mari/ner at sea.

• Privileged Will

  To make an underprivileged will valid, it must meet the following conditions:

  • The person who creates the will must sign or affix their mark to the will
  • The signature of the person who creates the will must be placed in such a way that it appears that it was intended to make this will effective
  • To make the underprivileged will a privileged will, it must be attested by two or more witnesses.

• Joint Wills

  Another type of Will that we have in our system is the Joint Will. As evident from the name “joint”, this will involve two or more persons who create the will, or agree to make a will.
  
  If the Joint Will is intended to come into effect after the death of both the persons or creators of the will, then it will not be enforceable during the lifetime of either. It can be revoked by either of the creators at any time during the joint lives or death of the one by the survivor.

• Concurrent Wills

  Concurrent Wills are basically written by a person who has two or more Wills about the instruction about the disbursal of property. For example, one Will in the Concurrent Will can have the details about the disposal of all the immovable assets. At the same time, another will deal with the disposal of all the movable assets.

• Mutual Wills

  As evident from the name, in this type of will, the testator confers on others for benefits. It is executed by husband and wife during their lifetime to pass the benefits to other people during their lifetime.

• Duplicate Wills

  A testator creates a Duplicate Will for safety purposes. A copy of the original Will is kept in the bank or with an executor or trustee. In case the testator decides to destroy the Will in his/her custody, then the Duplicate Will won't be considered valid.

• Sham Wills

  Sham Wills claims to be a Will but is not considered valid because the testator did not intend to have executed this Will as per his/her wish. As per the Indian Succession Act, a Will made by fraud is considered invalid.

• Conditional/Contingent Wills

  In Indian law, a contingent or conditional will is one that takes effect if an event occurs that satisfies the requirements outlined in the will. The Will's name makes it clear that it was established under specific circumstances, and in order to carry out this Will, a number of considerations must be made. The Will won't be carried out if the condition is not met or is unsuccessful.

Key Pointers to Note about Conditional Bequest in a Will

Before moving on to comprehend this, it is crucial to clarify what a bequest and a conditional bequest in a will are. A bequest refers to a gift, legacy, or asset that is given to another person. In the case of a conditional bequest in a will, the asset is only transferred when specific requirements are met. The following are some important reminders for you:

• A contingent or conditional bequest is one that depends on a certain event. On the happening of this event, the Will is executed.
• The conditional statements in the Will must be reasonable or logical.
• The Conditional Will, as per the Indian Succession Act, must have the conditions mentioned specifically; otherwise, the court will not consider it a Contingent Will.

Benefits of a Conditional Will

• There are several benefits of having Conditional Will; firstly, it will only be executed under the fulfilment of certain conditions
• Secondly, this Will has definite conditions; in case of failure of fulfilment of these conditions, the Will won't be executed
• These Wills are holographic and are attested by two witnesses making them more authentic and valid
• Before going ahead with the making of a conditional Will, it becomes important that you must ensure that the pointers in the Will are written aptly and are easily understandable.

Checklist for a Conditional Will

Well, a lawyer would be the best person to help in this condition, but here we will be highlighting what are the key pointers that you need to take into consideration while going ahead with Conditional Will:

• Hiring a good lawyer to create a Will
• Defining conditions of the Will
• The names of the person who will become the owner of the asset after the fulfilment of the conditions of the Will
• Two witnesses to sign the Will
• Signature of the person who wishes to make the Will.

How to make a Conditional Will?

Well, the formulation of the Conditional Will is dependent on various factors, and a good lawyer is a must for those who can explain all about Conditional Will and its conditions, but here we will illustrate some examples of how you can make a Contingent Will.

• Example:

  This Will would be executed only if my daughter graduates from management school…I make this Will to be executed only if I die because of an accident…
  
  While making the Conditional Will, one must pay special attention to the language of the Will. It must be specific and should have a detailed mention of the condition that needs to be fulfilled for the Will to be executed.

Why Vakilsearch?

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