Overview of Will Drafting
A will is an instrument declaring the intention of the testator regarding the disposal of his/her personal assets and properties. Distribution of assets and properties by way of will ensure peace between family members. It also removes disputes amongst the legal heirs regarding the distribution of the testator's property. The property and assets are distributed strictly as defined in the content of the will.
What is Will?
A will is a legal Document stating the distribution of a person's assets after his/her death. A will takes effect after the death of the person. It helps an individual to make rational decisions as to how his property, assets and wealth will be distributed to his relatives after his death. It is a unilateral Document.
There is no pre-defined legal format of a will. It can be either a typed Document or can be handwritten. It can be altered or revoked by the person making the will at any time before his death if he wishes. The last drafted will is considered the final will. It is not necessary to get the will registered.
Parties to a Will
Types of Will
There are two types of will as defined under the Indian Succession Act. These are:
The wills which are made by soldiers who have their duties in war-like situations or in a mission, etc, are called Privileged Wills. These wills do not contain a lot of legal formalities to be fulfilled. Such wills can be either in written form or oral form.
Unprivileged Wills are all other types of wills. These wills are required to undergo a lot of legal formalities and verification of details during their execution.
Essentials of a Will
A will to be called a legal and well-drafted will must contain certain below-mentioned essential characteristics. These are:
Assets Included in the Will
A will includes the distribution and disposal of both movable and immovable property. Such properties include:
Laws Governing the Transfer of a Property Through a Will
There are several laws which govern property transfer by way of a will. These are:
Who can Make a Will?
Indian Succession Act of 1925 contains provisions with regard to the person who has the authority to make a will. It has been defined under Section 59 of the said Act. The person who has the right and authority to make a will must have:
The section also states that when a person who is ordinarily of unsound mind makes a will when the person is of sound mind and is capable of taking rational decisions, then they will be considered a legal and valid will. The section does not permit a person to make a will when he is in an intoxicated state or suffering from a disease due to which he is unable to make a rational decision or understand the consequences of making a will.
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Making and Execution of a Will
Execution of a Will
Probate of will is important for the execution of a will. It is obtained from the court by filing a petition along with details of the property and a copy of the will. Probate gives a legal certification to the authenticity of a will. One should clearly express in the prayer before the court to grant probate for the execution of the will.
It is important to make the will keeping in mind the intention of the testator and the benefit of the beneficiaries. The beneficiaries should be informed about the legal implications of the same on them.
Details to be Included in a Will
In a will, the following details are to be included:
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What You should Avoid While Drafting a Will?
Grounds for Challenging a Will
There are several grounds on which a will can be challenged. These are:
Intestate Succession in the Absence of a Will
In the case where a person dies without making a will for the distribution of his/her assets and property, the matter related to the distribution of assets and property of the deceased is dealt with by the law of inheritance prevailing in India. There are two Acts which deal with the law of inheritance in India. These are:
What is the Process of Revocation of a Will?
A will is said to be revoked when it has been cancelled. There are several ways in which a will can be revoked:
Frequently Asked Questions
In order to fulfill the wishes of the testator with regard to the distribution of assets and properties, there is a need to make a will. It removes chaos and disputes amongst the beneficiaries. A well-drafted will help in knowing the proper and defined distribution of the property of the testator to the beneficiaries.
An executor is a person who has been appointed by the testator for execution of the will and to ensure that the directions given by the testator in his will have been duly followed. It is not necessary that the executor's name must be mentioned in the list of beneficiaries. He can be any trusted person.
In case the testator doesn't appoint an executor, then the court will appoint an administrator to perform the duties of the executor.
Your assets will be distributed as per the succession law. The personal succession law will be based on the religion of the deceased. It is also known as Intestate Succession.
There are a few essential things which make a will legal. These are:
- It should be in written form with the free consent of the testator.
- It should be duly signed by two witnesses who have seen the testator sign the will.
- It should be duly registered.
There is no prescribed time for making a will. Any person who has attained the age of 18 years is competent to make a will. It is suggested that once you have got married and have kids, you can make a will.
The common mistakes have been defined below:
- Not mentioning proper details of the assets.
- No changes in the will when there have been any alterations made to the assets of the testator.
- Revocation of the previous will after making a new will.
- Appointing an executor who is an interested party.
- Not appointing a guardian for minor children.
Registration of will is not necessary. It depends upon the testator to register his will or not.
A testator can change the will anytime he wishes. Once a new will has been made, the other previous wills get revoked automatically.
The term assets include both movable and immovable assets. It also includes real estate property, money deposited in the bank account, fixed deposit, securities and bonds, proceeds from insurance claims, art collections, retirement benefits, precious metals such as silver, gold, etc, intellectual property rights such as copyright, patent, brand names, etc.
A person who has attained the age of 18 years with a sound mind can be a witness of the will. A witness is required to verify that the testator has signed the will. It is usually preferred that the witness should not include the beneficiary in the will.
No. In cases where only a single witness signs the will is not considered to be legal and valid. When two witnesses sign the necessary paper, then only the will is considered valid even if it is not registered.
Yes, it is permissible under the law to update/change a will. A will can be updated by making a new will. After the new will has been made, it automatically cancels all the other previous existing wills. If in case, a will is submitted before the registrar, then the agent duly appointed by the testator can apply for amendment of the registered will.