By Admin, LegalFormatsIndia.com
Dec 8, 2020
This Article is only to highlight the general information and concept of a valid “WILL”.
“Will” is defined in Section 2 (b) of the Indian Succession Act, 1925 as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”.
The maker of the Will is called the “Testator”; the persons appointed under the Will to administer the estate of the Testator are called the “Executor/s”; and the persons receiving benefit thereunder are called the “Beneficiaries”.
A Will takes effect not from its execution, but on the death of the Testator and therefore the draftsman has to consider not only the circumstances of the Testator at the time when the Will is prepared but also what they may possibly be at the time of his death.
As a general rule for a Will to be valid it must be written. The only exception provided under the law exempts members of the armed forces employed in an expedition or engaged in actual warfare and mariners at sea who are permitted to make an oral Will. Such a Will is known as a “Privileged Will”. Muslims are permitted by their personal law to make an oral Will that need not be in writing.
A Will is the desire/intention of the Testator and under the law, he has, full freedom to give his personal property to any one and whomsoever he wants. The Testator should also make a provision in the Will about the future properties which he/she may acquire during his/her lifetime after the date of the Will as also about his/her residual properties which may not have been specifically mentioned in the Will.
If a person dies leaving properties in that case it is possible that in the absence of a valid Will his/her legal heirs will fight for their share in his/her properties. Hence, it is very essential that to maintain peace in the family and to avoid future conflicts between legal heirs every person should make a Will. If a person dies without leaving a Will in that event his/her estates/properties shall devolve on his/her legal heirs as per applicable Succession Act.
FEATURES OF A VALID WILL:
1. Every person of sound mind, not being a minor, may dispose of his property by a Will. A married woman may dispose of by her Will any property which she could alienate by her own act during her life. Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
2. For the due execution of a Will:
(a) the Testator should sign or affix his mark (i.e., signature) to the Will. The Testator has to affix his/her signature or thumb impression (if illiterate) in such a manner that it should appear that it was intended thereby to give effect to the writing as a Will. It is suggested that to give proper authenticity to the document, the Testator should sign on all pages of the Will. If the Will is made in any other language which is normally not well understood by the Testator, in that event the witness attesting the Will and before its execution should explain the entire Will in the language understood by the Testator and endorse the fact of explanation on the Will before its attestation by him.
(b) the signature or the mark of the Testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a “Will”.
(c) the execution of the Will should be attested by two or more witnesses.
(d) All the 3 persons namely person executing the Will and the two attesting witnesses must simultaneously and at one time sign and execute the Will in presence of all three of them. Each of the said witnesses must have seen the Testator signing or affixing his mark to the Will and each of them should attest his signature as having been affixed in their presence and they having put their signatures in presence of all three of them.
3. A Will can be made on any plain sheet and need not be on a stamp paper. Registration of a Will is not compulsory but is merely optional. Even though a Will may create or purport to transfer or bequeath an interest in an immovable property it does not require registration. The reason is that on the date of the execution of the Will it does not effect any transfer.
4. A Will only comes into effect only upon the demise of the Testator. Hence, until then, the Testator can revoke and cancel the same any number of times and prepare a new Will in its substitution. It is only the last Will in time that will prevail and be treated as valid. Registration of a will is not compulsory but is merely optional as though a Will may create an interest in an immovable property, however as on the date of the Will it does not effect any transfer.
5. The Attesting Witnesses to the Will preferably should be respectable persons having good reputation in the society. The Executors and the beneficiaries under the Will should be avoided as being witnesses to the Will. The idea behind this is to avoid an attesting witness, who is also a beneficiary under the terms of a Will, from deposing falsely regarding the manner and method of execution of the Will. It is also not necessary that a Doctor and/or an Advocate and/or Notary Public should attest the Will. If the family Doctor or a family lawyer witnesses the Will it would be a plus point. However, if the Testator opts to register the Will in that event the Registering Authority insists that the Doctor’s Certificate should be attached to the Will certifying that prior to execution of the Will he had physically examined the Testator and found him mentally fit to understand and execute the Will. This is to ensure that the Testator had sound disposing state of mind to execute the Will.
1. In the event that the Testator desires to make some change or modification and that a part of the Will needs to be altered, another document effecting such change can be prepared and attached to the Will to be executed in the same manner as that of the Will. This document is called a Codicil and shall form part of the Will. Both the Will and the Codicil are to be read together for the purpose of giving effect to the provisions contained therein after the death of the Testator.
2. If many changes are required to be effected in the main provisions of the Will, it is desirable to make another Will revoking the previous Will so that it becomes easy to follow the provisions contained in the Second Will instead of looking into two documents viz. Will and Codicil and the difficulty in co-relating both such documents can be avoided.
A holographic will is a will which is wholly handwritten by the Testator himself in his own handwriting. Holographic Wills are valid in India. The primary requirement that a Holographic Will must satisfy is that it needs to be expressly in the nature and form of a Will, bequeathing the estate of the Testator and should meet with other formal requirements of a valid Will. The Will must designate itself to be a testamentary document expressly stating on the first page the same to be the “last will and testament of the Testator”. Even in respect of a Holographic Will, quite contrary to the popular belief that Holographic Wills being handwritten by the Testator himself, do not require two attesting witnesses, there is no exemption from the requirement of two attesting witnesses which is a must.
CHALLENGING A WILL:
It is difficult to challenge the validity of a properly executed Will before a Court of Law. However, the Will can be challenged before a Court of Law mainly on the following amongst various other grounds available in law, namely: –
(a) The Will is not executed by the Testator. His signature is forged and/or fabricated.
(b) The special requirement of attestation by two witnesses are not met with.
(c) The Will is executed under undue influence, fraud and coercion. It is held by our courts that “it is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour, and if the testator retains his mental capacity, and there is no element of fraud or coercion, the Will cannot be attacked or challenged on the ground of undue influence.”
(d) The Testator had no sound disposing state of mind to execute the Will.
(e) The circumstances under which the Will is executed are suspicious. The suspicious circumstances may be as to the genuineness of the signature of the Testator, the condition of the Testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indication in the Will to show that the Testator’s mind was not free.
(f) That the Will is not the last Will of the deceased and that there is a subsequent valid Will.
The burden to prove the aforementioned allegations is on the person making the same.