Will under Indian Law

 1.  Meaning of A Will:

A will is a property disposition made during a person's lifetime that is intended to be effective after death. Section 2(h) of the Indian Succession Act, 1925 defines the term "will". The term "will" refers to the legal disposition of a testator's wishes regarding their property after death. A Will is a legal declaration of a person's wishes to be carried out after death.

Making a Will is the only way to ensure that a person's property is peacefully transferred after death, avoiding disputes and complications.

2.  Characteristics of a Will:

The following are four major characteristics of a Will:

• A Will must be intended to take effect after the testator's death.
• A Will can be revoked by the testator at any time.
• Wills are typically used to dispose of property, but they can also be used to create trusts and appoint executors.
•  A Will can also be used to appoint guardians for minors.

 3.  Will and Bequest :

Definition of: A Will is a document in which the testator appoints executors to administer their estate after death and specifies how it should be distributed to beneficiaries. To be legally valid, the Will must meet the formal requirements of Part VI of the Indian Succession Act, 1925 and Schedule III.

A bequest is a gift of property other than land made through a will. The term "bequest" refers to disposing of personal property through a will. Personal properties include movable assets such as money, gold, library books, machines, and household items.

The person who makes the Will is known as the "Testator," and the person who benefits from it is known as the "legatee" or "beneficiary."

There are no restrictions on the right to receive property under a will. As a result, anyone can be a legatee, including a minor or a company. However, anything given to a person that did not exist at the time of the testator's death is invalid.

The term "Devise" refers to a gift by will or real property. Real property, also known as immovable property, refers to land, houses, and other structures. The beneficiary is known as a 'devisee'.

Advocates, scribes, and document writers in India often use these words without understanding their true meanings.

 

4.  Benefits of Creating a Will:

There are several benefits to creating a will:

·       Without a Will, a person's property passes to their heirs based on applicable inheritance laws. A Will allows a person to dispose of property for special needs of family members, such as a disabled son, widowed daughter, or invalid parents.

·       By writing a will, individuals can provide for their faithful servants and friends in need, as well as charitable institutions such as orphanages, schools, and temples.

·       A person may deprive a distrusted wife of her inheritance rights.

·       Writing a Will can help to avoid family disputes to the greatest extent possible.

·       Accidents such as motor accidents and railway accidents are a common cause of unnatural deaths. It is recommended to create a will after reaching the age of 50.

 

5.  Who can make a Will?

According to Section 59 of the Indian Succession Act, 1925, certain individuals are eligible to do so.

·       Majors of sound mind who are not minors have the right to make a will to dispose of their property. Age does not determine mental soundness. A testator's age, such as 95 years, does not necessarily indicate a lack of capacity to execute a will unless medical evidence proves unsound mind.

·       Drunkenness is not indicative of incapacity. Physical incapacity to sign his name does not imply that the testator lacked sound disposing mind. "A person of sound mind" refers to their mental state, not their physical health.

·       Married women have the right to dispose of any property they may have alienated during their lifetime through their will.

·       Individuals who are deaf, dumb, or blind are not ineligible to make a will if they understand its purpose.

·       A person who is ordinarily insane may make a Will while he is of sound mind.

·       Corporate and unincorporated bodies cannot create their own wills, but can benefit from an individual's.

·       No person can make a Will if he is in such a state of mind, whether due to intoxication, illness, or any other cause, that he does not understand what he is doing.

Illustrations:

·       A is aware of his surroundings and can answer basic questions, but lacks knowledge about his property, relatives, and beneficiaries. 'A' cannot create a valid will.

·       A signs a Will but does not fully comprehend its purpose or implications. The instrument does not constitute a valid will.

·       A debilitated but capable individual creates a Will to determine how to dispose of their property. This is a valid will.

 

6.  Will Preparation :-

The preparation of Wills is a matter involving considerable skill and not something to be lightly undertaken by those lacking the necessary experience.

While model forms can aid in the precise wording of clauses in a Will, it's important to avoid simply copying formulae as this can lead to disaster.

When preparing a Will for a client, the Advocate or Document Writer must ensure two things. First, that the Will is valid; second, that it accurately expresses the testator's wishes.

 

7.   The Advocate must ensure that the Will accurately represents the testator's wishes:

  To provide guidance and advice on various matters, it's necessary to take full instructions from the client (rather than being introduced as a client by the bank manager).

 

8.   Testator's Instructions:-

    Obtaining instructions for preparing a Will usually requires an interview with the testator, even if their wishes are clearly stated in a letter to their advocate. The Advocate may propose implications that the client is unaware of, as well as alternative and potentially more advantageous approaches to achieving their goals. It is important to invite the client to consider additional important issues. The client's Will is ultimately their responsibility, but they often rely heavily on it. Advocate's advice and guidance to create the most appropriate Will for his specific circumstances.

9.  Validity of a Will :-

Issues to Consider: A Will's validity is determined by different key issues. The issues are presented below:

·       The testator must possess the necessary capacity. The testator must be at least 18 years old and understand the consequences of their actions, the extent of their property, and any moral claims they may have. In the vast majority of cases, this fundamental requirement is unlikely to be seriously contested.

·       If there is any doubt about the testator's mental capacity, such as serious illness or a history of mental illness, it is recommended that a medical practitioner examine and witness the Will. This provision is extremely important.

·       If a medical practitioner refuses to testify, they should provide a declaration regarding the testator's mental capacity.

·       If a medical practitioner is unwilling to accommodate an alternative request, it is best to seek another qualified practitioner.

 

·       The testator must have the proper intent to make the Will. This includes both the intention to create a will and the specific will executed. As a result, the testator must fully understand and approve the Will's contents. The validity of a Will is typically assumed if the testator had capacity and executed it. However, if the testator is blind or illiterate, they must demonstrate knowledge and approval.

·       The attestation clause confirms that the Will was read to the testator in front of witnesses and he gave his approval.

·       The above-mentioned presumption will not apply if there are "suspicious circumstances," such as a Will that primarily benefits the person who prepared it. To be admitted to probate, the Will must be verified by removing any suspicious elements.

·       To be legally valid, a will must be in writing, signed by the testator or someone on their behalf, and acknowledged in front of two or more witnesses. The testator's signature must indicate that he intended to carry out the Will. The witnesses must then attest to and sign the Will (or acknowledge their signatures) in the presence of the testator, but not necessarily each other.

·       No form of attestation is required. However, it is highly desirable to include an attestation clause that purports to demonstrate compliance with legal requirements, thereby raising the presumption of due execution. In the absence of a clause, an affidavit of due execution, sworn by witnesses, is typically required to admit the Will to probate. This can be challenging in cases where witnesses are deceased or cannot be traced.