What is a Will?
A Will means the legal declaration of the intentions of an individual about his property and assets, which will take effect after the demise of the person. It is a unilateral contract. Further, It can be revoked or modified by the maker at any time when he would be competent.
A Will drawn out by a Hindu, Sikh, Jain or Buddhist is governed by the Indian Succession Act, 1925. However, Mohammedans are not governed by the Indian Succession Act, 1925 and they can subsequently decide the disposal of their assets under Muslim Law.
Who can make a Will?
- Firstly, Any person who is not of unsound mind and is not a minor.
- Also, Persons who are dumb or deaf will be able to make a Will provided they know what they are able to do by it.
- A person is usually insane may make their Will at a time when they are sane.
- A Will cannot be made in a state of mind where the individual does not know what he is expressly doing whether it is due to intoxication or other illnesses.
What should be included in the Will?
Under Chapter VI of the Indian Succession Act, under Section 74 it is stated that a will may be made in any language or form; however, there are certain details that are to be included in the Will.
- Personal Details – Your name, Fathers name, Date of birth and residential proof, etc.
- Date declaration – The date of the Will has to be clearly mentioned.
- Free Will – It is to be mentioned that the Will is being written under free Will and not the author is not being forced or coerced by anyone.
- Details of beneficiaries and assets – This section is the most important section as it includes the list of all properties and assets including bank deposits, mutual funds etc. and it also must include the beneficiaries for each asset.
- Signature – The Will must be signed by the author of the will
- Witness Signature – The Will has to be attested by a minimum of 2 witnesses along with the personal details of the witnesses.
Execution of the Will
Every individual not being a soldier employed in warfare or deployed on an expedition or an airman so engaged or any other member of the armed forces so deployed shall execute his Will in the following manner:
- He shall fix his mark or sign the Will, or the Will shall be signed by someone on is the direction and in his presence.
- The signature should be placed so that it is expressly clear that it was intended to give effect to the Will.
Registration of a Will
Registration of the Will is not compulsory and completely optional according to section 18(e) of the Indian Registration Act, 1908. Although it is not compulsory, getting the Will registered removes all doubts of the ingenuity of the Will. Further, The registration removes all future hindrances in the performance of the Will. However, if a new Will is drafted after the registered Will, this new Will shall supersede the registered will.
Revocation of a Will
Revocation of a Will can take place in the following manner:
- Execution of a new Will
- By declaring the intention to revoke Will which shall render it invalid
- Burning the Will
- Tearing the Will
- Destroying the Will in any other way
Loss of a Will
If a Will has been misplaced or lost, it is presumed to be revoked and invalid.
Probate of a Will
‘Probate’ of the Will means that a copy of the Will is certified under the seal of a Court. It is known as the official proof for a Will. It is granted by the court and issued to the executor. A Court Will grant a probate only if it is completely satisfied with, the validity of the Will. This adds to the legality if the Will. However, the probate of a Will may also be revoked under certain provisions of the succession act. Read the detailed Article on Probate of a Will –https://advocatetanwar.com/probate-of-a-will/
How to challenge a Will?
There are several different grounds on which the validity of a Will can be challenged such as lack of due execution, lack of testamentary intention, lack of knowledge, fraud, revocation etc. However, There is a certain procedure that must be followed for the same. Even after the issuance of a probate, a Will can be challenged.
If you are looking for any help understanding the legality of the whole procedure, feel free to contact us. We will be able to provide you with the most appropriate legal consultation.
By Aryan Dhingra
B.B.A LLB 2nd Year student of OP Jindal Global University