The term WILL is, defined under Section 2(h) of the Indian Succession Act 1925. It is a declaration in writing by the Testator (A person who makes a will), showing how his/her properties and assets should be distributed after his/her death.
The WILL surpasses the succession law on inheritance. The person, whose name is mentioned in the WILL, will be the beneficiary of the WILL and he/she only is entitled to receive his/her share specified in the WILL without any hindrance.
There is no prescribed format for a WILL; you can write a WILL in your own language in your own style. It is not necessary that any technical words or terms of art be used, but only that the wording used in the ‘WILL’ shall convey the clear intention of the testator. It can be handwritten or typed. Stamp paper is required only if it is to be registered. However, registration does not offer any additional legal sanctity to a will. The Will prepared can also be amended from time to time, whenever there are changes in the nature of the property or assets or due to family circumstances. The amendment (Codicil) prepared should be read in conjunction with the main Will. However, if there are too many amendments, it is advisable to make a new Will by revoking all previous Wills.
A Testator (person who makes the will) shall take precaution to ensure that the will left by him shall not give room for challenging it after his/her death by someone on the grounds that the document was not a final document or the testator was lacking mental capacity to write the will or it was prepared under the coercion of a person who is the major beneficiary of the will or the will altered after it was signed by the testator or the will lacks clarity or the signature of the testator was forged or it was made as a result of fraudulent act. To circumvent the ambiguities stated above which may lead to litigation amongst legal heirs, the citation of Will made by a testator usually written with the following passages.
- Testator’s name, age, father’s name/husband’s name, residential address, date, time and place where the Will is made appear on the Will.
- The Testator makes a declaration that he is making this will out of his free volition, being of sound mind and memory, without any coercion or undue influence’.
- The full details of movable and immovable properties to be distributed including details of jewels and other valuables to be disseminated to the members with their names and share each would receive.( a member of an undivided family cannot bequeath his coparcenary interest in the family property)
- The name of the caretaker of the minor who would hold the property bequeathed should be mentioned, in case the minor is the beneficiary until he/she attains the age of majority.
- The relationship of the Testator with the beneficiaries of the will (preferably with a small note on the names of other close relatives, though the testator has not bequeathed any of his assets to them).
- The testator shall include a clause that before distributing in accordance to the WILL, all his/her debt, liabilities and monetary obligations including all testamentary expenses, cost charges, expenses in respect to Probate and other legal charges should be paid off from the proceeds by the executor (who will implement the Will).
- If daughters are included as beneficiaries, clarify the division of property to daughters and implication on WILL if the daughters are married, widowed or remains unmarried at the time of your death.
- If you desire to set aside the certain amount from your assets after your death for the charitable purpose, clearly specify the name of the charitable organization, amount or asset to be donated.
- The testator has to appoint an executor to implement the WILL. It is better to appoint the second executor in the same ‘Will’ under certain circumstances where the first Executor will not be in a position to execute the ‘Will’.
- The maker of the Will should sign or put his /her mark at the end of the Will. If the testator does not sign or put his/her mark at the end of the Will, the text following the signature or mark usually be ignored or the entire Will may be invalidated. Therefore, care should be taken that no text is added after the signature of the testator.
- A Will has to be attested by two or more witnesses, each of who must acknowledge that they have seen the testator signing the Will and they must sign as the witness in the presence of the testator. [If possible, one of the witnesses may be a doctor (medical practitioner), who certifies that the testator appears to be in sound mind and sound mental health at the time of making the will.]
Meaning of Probate/executor/administrator: The Executor is the person who will implement the WILL after the testator’s death. The executor obtains a letter of ‘PROBATE’ (Probate means to “prove” the validity of the last will and testament) from a competent court of law before acting upon the WILL. If the WILL does not contain the name of the executor or executor refuses to accept the responsibility, the Court will appoint an administrator for the purpose.
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Disclaimer: The format of a WILL’ provide above is a sketchy write-up. It should not be treated as meticulous guidance for the preparation of a Will and under any circumstances. Further, the contents of this article should not be construed as legal advice. For clarifications or interpretations if any the readers are suggested to take the advice from a qualified legal practitioner. The author of this post or the website is not responsible for the mistakes, errors, ambiguity, discrepancy, doubts, and inconsistency with law, or quality of the information provided here. The liability or claim of any nature on account of information provided here for whatsoever cause is not recognized.
