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 necessary paper 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 necessary paper.
There is no pre-defined legal format of a will. It can be either a typed necessary paper 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
- Testator: A person who writes the will. He/she is the one whose property and assets get distributed amongst his family members by way of execution of the will.
- Beneficiaries: The people whose names have been mentioned in the will for receiving the assets of the testator.
- Executor: An executor is a person whose name has been mentioned in the will to fulfil the directions given by the testator and to execute the will.
- Trustee: A trustee is a person who has been assigned the task to manage the estate of the testator. A trustee is appointed for the benefit of the beneficiaries.
- Legal Guardian: Legal guardian is the person whose name has been mentioned by the testator to take care of the share of the property given to the minors by way of a will. It is important to appoint a legal guardian, as if there is no guardian appointed, the court may appoint one.
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:
- The Indian Succession Act, 1925
- The Code of Civil Procedure, 1908
- The Indian Registration Act, 1908
- The Indian Stamp Act, 1899
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
- The very first step is to comply with all the essential elements of a will described above.
- It is advisable to contact a lawyer for drafting the will. A person can be made by the person himself too.
- Execution of a will is made after ensuring that 2 witnesses saw the testator signing the will. It is also necessary for the witnesses to sign as well.
- A will duly registered and stamped helps in the easy execution of the will. It increases the authenticity and reliability of the 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:
- The name, address, age and other necessary details for identification of the testator and the date on which the will was drafted.
- A declaration by the testator stating that he/she has drafted the will in sound mind and free from any fraud, coercion or undue influence.
- The details, such as name, address, and age of the beneficiaries, along with the details of the people amongst whom the assets will be divided, must be mentioned with their relationship with the testator.
- It is essential to appoint an executor of the will who will execute the will after the death of the testator. It is the duty of the executor to ensure that the execution process goes as per the directions of the testator. It is also important to state the details such as name, age, address and the relationship of the executor with the testator.
- It is necessary to mention all the exact details of the assets and property of the testator in the will. It is also important to mention the list of assets and properties which are covered in the will.
- It is important for the testator of the will to mention the specific share of each beneficiary in the assets and properties of the testator. If a share has been given to the minor, then it is necessary to mention the name of the custodian of the minor’s asset.
- It is the responsibility of the testator to mention specific directions and instructions, if any, for the execution of the will as per the wish of the testator.
- The signature of the testator has to be made in presence of at least 2 witnesses. The witnesses need to ensure and verify that the testator signed the will in their presence. It is not essential for the witnesses to know the content of the will.
- It is necessary for the testator to sign the will necessary paper along with the date of signing mentioned.
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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:
- If it has been proved that the testator made the will under pressure, fraud, coercion or undue influence, the will is said to be not made with the free consent of the testator. A will drawn by the testator without his/her free consent sets the ground for challenging it.
- If the content of the will gives a suspicion that there was some transgression to the will, it is ground to challenge the will.
- If it is proven that the testator is incapable of making a will or was in a state of unsound mind while drafting the will.
- If it has been found out that there are no signatures of the testator along with the witnesses to verify the reliability of the will.
- If it has been found out that the testator has no knowledge about him/her signing the will, the will can be challenged.
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:
- Personal inheritance laws for people belonging to different religions, such as Hindu Succession Act, 1956 for Hindus and the Muslim Personal Laws (Shariat) Application Act for Muslims, etc.
- Indian Succession Act, 1925
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:
- If the testator made a will and after his death, the will is not found, then it is considered that the will was with the testator and it might have been destroyed.
- If the testator makes multiple wills, then the previous will is automatically revoked and the latter is considered final.
- When the will has been destroyed by the testator by tearing or any other means, then it is considered cancelled.
- If the testator after making a will get married, then the existing will gets revoked. This provision has been made after keeping in mind the interest of the interested parties.
Frequently Asked Questions
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.
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.