Conditional or Contingent Wills

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Overview

Will and testament is a legal document by a person, called a testator, who states that the distribution of his/her asset and possessions and also mention his/her wish regarding the custody of minor dependents and management of accounts and interests.

What does a Will include?

When we talk about Will, then there is no specific form or feature, but this document must explain the intent of the testator and his/her 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
  • Care of minors
  • Minors’ share treatment, till the time they become self-dependent
  • Residual clause for the remaining asset
  • Will in the Indian Context

    Well, we cannot trace the origin of Will amongst Hindus, but Wills was more popular amongst Mohammedans, and later it was in the European countries where the practice of having an oral testamentary or informal written testament became popular. The Indian Succession Act, 1925, governs the wills in the Indian Law system. It superseded the earlier acts that were governing Wills and codicils of Hindus, Jains, Sikhs, and Buddhists. This Act doesn’t apply to the Mohammedans; they are governed by the Muslim Law and they can dispose of their property according to the Muslim Law.

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    Types of Wills

    Different types of Wills 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 mariner 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 his/her 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 involves two or more persons who create the Will, or they agree to make a conjoint 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 life-time 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 having 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 deals with the disposal of all the movable assets.

    Mutual Wills

    As evident from the name, in this type of Will, the testator confers on other 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 the safety purpose. 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

    When we talk about contingent or conditional Will in Indian Law, then this type of will comes into effect in case of an event satisfying the conditions mentioned in the Will. It is evident from the name of the Will that it is created on certain conditions, and there are certain factors that need to be taken into account to execute this Will. And if the condition doesn’t happen or it fails to happen, then the Will won't be executed.

    Concluding from this, we can say that a Will is a document that has all the detail about the distribution of a deceased person’s property to their relatives and loved ones. Besides, the Conditional Will is used by a person when he/she wants the Will to become effective on the fulfilment of certain conditions or in case of occurrence of some event. An important aspect of this type of Will is that they are holographic, they are completely handwritten, or they can be attested, that means that this Will is signed by the testator and two witnesses.

    Key Pointers to Note about Conditional Bequest in a Will

    Before heading to understand this, it becomes important to mention what is a bequest, and what is a conditional bequest in a Will?

    Bequest means a legacy or asset or gift which is passed on to the other person. Well, in the case of Conditional Bequest in a Will, it is passing on the asset when certain conditions are fulfilled. Here are certain pointers that you need to know:

  • 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 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 this who can explain all about Conditional Will and its conditions, but here we will illustrate some examples as to how you can make 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.

    FAQs on Conditional or Contingent Wills

    What are the different types of wills?

    There are different types of Will as per the Indian Law System; they are the following:

    • Unprivileged Will
    • Privileged Will
    • Conditional/Contingent Wills
    • Joint Wills
    • Concurrent Wills
    • Mutual Wills
    • Duplicate Wills
    • Sham Wills

    What is Conditional Will?

    This kind of Will is made by the testator to ensure that the Will is executed only when the contingencies mentioned in the Will are executed properly. Hence, every clause in this Will must be written specifically.

    Is there a need for a witness to sign a Conditional Will?

    Yes, as per the Indian Success Act, the Conditional Will has certain conditions that need to be fulfilled for it to be executed. It is a holographic will and must be signed by the testator who is creating the Will and two witnesses.

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