The term “Will” is defined under Section 2(h) of the Indian Succession Act, 1925, as a legal declaration made in writing by a person, referred to as the Testator, whereby the testator specifies the manner in which his or her assets and properties are to be distributed upon their demise.
A Will has overriding effect over the general rules of intestate succession. Accordingly, only the individuals expressly named in the Will shall be entitled to the specified share or bequest therein, to the exclusion of other potential heirs under ordinary succession laws.
Form and Substance of a Will
There is no prescribed statutory format for drafting a Will. It may be written in any language and style, so long as it reflects the unequivocal and genuine intention of the testator. The use of legal or technical terminology is not mandatory. The Will may be either handwritten or typed. Use of stamp paper is not obligatory, unless the Will is sought to be registered under the Indian Registration Act, 1908. However, registration of a Will, though permissible, is not essential to its validity and does not confer any additional legal sanctity.
A Will may be amended by the testator at any point in time through a supplementary instrument called a Codicil, particularly in response to changes in the nature or value of assets, or personal and family circumstances. Where there are multiple codicils, or the amendments are substantial, it is advisable to execute a fresh Will, explicitly revoking all prior testamentary documents.
Safeguards to Ensure Validity of the Will
The testator must exercise due caution to preclude future challenges to the Will, which may be made on grounds such as:
- Lack of testamentary capacity,
- Undue influence or coercion by beneficiaries,
- Forgery or fraudulent execution,
- Ambiguities in language,
- Post-execution alterations, or
- Lack of attestation.
To mitigate the risk of such disputes, it is standard practice to incorporate the following elements in a properly drafted Will:
- Identification Details: Full name, age, parent’s or spouse’s name, permanent residential address, along with the date, time, and place of execution.
- Voluntary Declaration: A statement affirming that the Will is made voluntarily, by a person of sound mind and memory, free from any duress or influence.
- Statement of Assets: A comprehensive list of movable and immovable properties, including household valuables and jewellery, together with the names of beneficiaries and the specific share bequeathed to each.
(Note: A member of a Hindu Undivided Family (HUF) cannot bequeath his undivided coparcenary interest unless it is first partitioned.) - Provision for Minors: If any beneficiary is a minor, the Will should designate a guardian or caretaker for managing the property until the minor attains the age of majority.
- Details of Beneficiaries and Relatives: A brief description of the relationship between the testator and beneficiaries. It is also advisable to mention close relatives who have been excluded from the Will, with or without reasons.
- Settlement of Liabilities: A clause directing the executor to first discharge all outstanding debts, liabilities, and testamentary expenses (including legal costs and probate charges) before distribution of assets.
- Provision for Daughters: In cases where daughters are named as beneficiaries, clarify the manner of division and state any implications based on their marital status at the time of the testator’s death.
- Charitable Bequests: If any asset or portion of the estate is intended for philanthropic purposes, the Will must clearly state the name of the charitable institution and the specific amount or asset to be donated.
- Appointment of Executor(s): The Will must appoint an executor, who is legally responsible for ensuring the administration and execution of the Will. A substitute (alternate) executor may also be named, to act in the event the primary executor is unable or unwilling to act.
- Signature of the Testator: The testator must sign or affix a mark at the end of the Will. Any content appearing after the signature may be deemed invalid. The signature must indicate the testator’s approval of the entire content above it.
- Attestation by Witnesses: The Will must be attested by at least two witnesses, who must have witnessed the testator signing the Will and must themselves sign in the testator’s presence.
(Recommendation: One of the attesting witnesses may be a registered medical practitioner who certifies the testator’s mental soundness at the time of execution.)
Role of the Executor, Probate, and Administrator
The executor named in the Will is responsible for implementing its terms post the testator’s death. The executor is required to obtain a Probate—a legal confirmation from a competent court validating the authenticity of the Will. If the Will does not name an executor, or the named person refuses to act, the court may appoint an administrator to discharge the same responsibilities.
Disclaimer: This blog has been written exclusively for educational purposes. The author shall not be responsible for any direct/indirect loss or liability incurred by the reader for taking any financial/real estate decisions based on the contents and information. Please consult your financial advisor/legal advisor before making any financial decision.
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