INTRODUCTION
Will is an important testamentary instrument through which a dead man can give away his property in accordance with his wishes.
Everyone likes that their life should be shown as meaningful and they are concerned about their property after their life. If a person dies without leaving behind his Will, his property shall devolve by way of the law of intestate succession and in accordance with the Will. So, it is an apt option that a person should make a Will so that one can fulfill his intentions and devolve the property accordingly.
The origin of the concept of will is untraceable. We can trace the concept of the same from Muslim law. The Indian Succession Act, 1925, consolidating the laws with certain exceptions and testamentary succession supersedes the earlier Acts and is applicable to all the Wills and codicils of Hindus, Buddhists, Sikhs, and Jainas throughout India. The Indian succession,1925 does not govern the Muslims. Their own set of rules and regulations regulates the disposal of their property.
Definition of Will
S. S.2(h) of Indian Succession Act, 1925
This section provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. It has been defined as a ‘Will’ is the legal declaration of a man’s intention, which he wills to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death.
Definition of other related terms:
Codicil:
A codicil is an instrument made in relation to a Will. It explains, alters, or adds to its dispositions. And, it is deemed to be a part of the Will. The purpose behind this is to make some small changes in the Will, which has already been executed. The Will must have the written form and must have the signature of the testator and attestation by two witnesses. It is the court’s duty to arrive at the intention of the testator. The Court shall reach to the intention via reading the Will and all the codicils.
Executor:
The testator appoints an executor. He is a different person from an administrator who is appointed by the court. Where the Will confers the powers to the executor by implication.
Probate:
It is evidence of the appointment of the executor and unless revoked, is conclusive as to the power of the executor. The grant of probate to the executor however does not confer upon him any title to the property.
Letter of Administration:
It’s a certificate granted by the competent court to an administrator where there exists a Will authorizing him to administer the estate of the deceased in accordance with the Will. If it is silent about the name of the executor then an application can be drawn to the court
Attestation of Will:
Attesting means signing a document for the purpose of testifying the signature of the executants. The necessity lies to the will that it witnesses needs to sign in presence of the testator. And there lies no compulsion that the witnesses should sign at the same time. and they should know the content it is also not a compulsion.
Essential Features of a Will
A Will can be made at any time in the life of a person. It can be changed a number of times and there are no legal restrictions at a number of changes; can be withdrawn at any time during the lifetime of the person making the same. It must be attested by two or more witnesses.
The essential features are:
- Legal declaration: The documents of the same should have conformity with the law. The person legally competent to make it must execute these documents. Further, the declaration of intention must be with respect to the testator’s property. It is a legal document, which has a binding force upon the family.
- Disposition of property: In a Will, the testator bequeaths or leaves his property to the person or people he chooses to leave his assets/belongings. A Hindu person by way of his Will can bequeath all his property. However, a member of an undivided family cannot bequeath his coparcenary interest in the family property.
- Takes effect after death: It is enforceable only after the death of the testator
under section 18 of the Registration Act, the registration of a Will is not compulsory. Also, the SC in Narain Singh v. Kamla Devi has held that mere non-registration of the Will an inference cannot be drawn against the genuineness of the same. However, it is advisable to register it as it provides strong legal evidence about the validity of the same. It is to be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate. Since a testamentary disposition always speaks from the grave of the testator, the required standard of proof is very high. The initial burden of proof is always on the propounders of it.
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