Where there is a will, there is a way

This article was submitted by Shashank Sardesai from Shri. Navalmal Firodia Law College for National Legal Writing Competition,2016

WHAT IS A ‘WILL’?

We have often heard the word ‘will’. In common parlance, it is used in reference to a wish or desire of a person to do an act. However, the ambit of the word is clearly not limited to the said definition. In the legal context, ‘will’ is used to denote the manner of distribution of a person’s belongings after his death, in accordance with his desire.
Thus, it is the legal declaration of a person’s intention which he desires to be performed after his death. In other words, the person making the will, known as the testator, provides for the transfer of his property in the name of one or more persons, known as legatee/s.
‘Will’ is a testamentary instrument by way of which property is transferred. Hence, such distribution of property is also known as ‘testamentary succession’.
In India, testamentary succession is dealt by the Indian Succession Act, 1925.
The Indian Succession Act, 1925 defines a ‘will’ as, “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”[1]
In short, the will is a testamentary document which comes into effect after the death of the testator.

IMPORTANCE OF MAKING A WILL:

In case an individual dies without making a will, a number of problems arise. In such cases, the property is devolved upon the relatives of a person in accordance with the personal family law of the deceased. Since the devolution is in accordance with the law, there remains a perpetual ambiguity as to the intention of the deceased and the distribution may not be in accordance with the desire of deceased.
Therefore, it is of utmost significance that a will be made, in order to avoid the wrath of family disputes and legal formalities.

ESSENTIAL ELEMENTS FOR CONSTITUTING A VALID WILL

There are certain prerequisites which constitute a valid will. There are 5 essentials to form a valid will. These five elements have been enumerated as below:

  • Legal Declaration for Disposition: Will is a legal declaration for disposition of property made by a person to take effect after his death. It must be in conformity with law.
  • Competence of testator: A will or any testamentary document can be made by any person who is of sound mind and not a minor.[2]
  • Free Agency: A will shall be valid only if it is made by the testator beholding his free agency. Thus, any will be made by a person under coercion, threat, fraud, misrepresentation or any kind of undue influence shall be void. [3]
  • Will to take effect after death: The will is to be drafted such that it is intended to take effect after the death of the person. If the will contains any provision by which property is to be transferred during the lifetime of the testator, then such will be held invalid. Hence, it shall take effect only after the death of the testator.

 

  • Attestation of will: ‘Attestation’ is the act of showing or evidence showing that something is true. A will must be compulsorily attested by at least two independent witnesses. In simple words, once the testator finishes the drafting of the will, he is required to sign the will in presence of minimum two witnesses. The witnesses shall then sign after the testator, further certifying that the testator has signed the will while they were present. Furthermore, the date and place of attestation must be added, preferably at the bottom of the page.

 ADDRESSING THE COMMONLY FACED QUESTIONS AND ISSUES PERTAINING TO  WILLS

The concept of will is discussed, but there are a few issues and questions often faced by individuals in relation to this concept. We shall now address the same.

The questions often faced by individuals pertaining to wills are as follow:

  • Is there any prescribed format for making a will?
    There is no prescribed format for will. The only element necessary is that it should convey the clear and undisputed intention of the testator.[4] There are no technical terms to be used or specific legal language required.
    The testament should bring out the intention of the testator, description of property and description of legatee/s in clear words in order to avoid confusion.
    Although there is no specific format for will, a will should clearly state that it is the last will of the testator and it is not made under any force, coercion, etc. and also signed by the testator. It can be printed or handwritten. Handwritten testaments will be preferred since they will provide a better proof with respect to the genuineness of the testament.

As mentioned before, a will can be made by any person who is of sound mind and major.

 

  • Does a will require registration and stamp duty?
    A will do not require compulsory registration. The testator may get the will registered only if he desires to do so.[5] However, registering a will has quite a few advantages. Upon registration of will, a registered copy of the original will is deposited in the safe custody of the Registrar. The benefit of this is that the possibility of tampering, forgery or mutilation does not remain at all. If the original testament is destroyed or tampered, etc., it can always be compared by applying for a certified copy of the will. A registered testament will always be considered more reliable than an unregistered testament. A will is registered in the office of the Sub-registrar of the district where the testator resided prior to his death.
    ‘Stamp duty’ is a duty required to be paid on legal recognition of certain documents. Stamp duty rates differ from state to state. As far as a will is concerned, no stamp duty is required to be paid at all. A will come into operation only after the death of the testator and it can be subject to changes as desired by the testator, as a result stamp duty is not leviable on registration of will. However, a nominal amount by way of the registration fee is charged.
  • Can a ‘will’ be revoked or subjected to changes?
    A will can be revoked during the lifetime of the testator. To revoke means to cancel officially. There is no restriction on revoking a will or making any changes to it, as long as the revocation or changes are made during the lifetime of the testator.
  • Are the services of a professional like advocate required?
    There is no law which requires the services of a lawyer be availed just for expressing one’s intention with reference to his property after death. All that is required is that the intention of the testator is expressed in clear words and the same is attested accordingly.
    Now, though the services are not mandatorily required, in the case of any ambiguity as to the drafting, registration, etc., it is advisable to consult a professional. From the legal perspective, one’s advocate may suggest several constructive measures which may avoid legal disputes in the future.
  • How is a will executed?
    For the execution of the will, a ‘probate’ is required to be obtained from the court. ‘Probate’ means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.[6] It is always recommended that the testator should appoint an ‘executor’ in the will. ‘Executor’ means a person to whom the execution of the last will of a deceased person is, by the testator’s appointment, confided.[7]
    Non-appointment of an executor does not make a will invalid. In case, the testator fails to appoint an executor, the court appoints an administrator for the same purpose. After the court grants a probate, the estate of the deceased can then be distributed.

CONCLUSION

Testamentary disposition is of significant help for distribution of one’s assets in the way he intends, after his death. Although the law has not put many restrictions on making a will, certain questions always surface and create ambiguity. An attempt has been made to answer these questions by maintaining a balance between the legal perspective and the logical way.
Without a doubt, there is definitely much more to the phrase, “where there is a will, there is way” than just a motivational quote.

[1] Section 2 of the Indian Succession Act, 1925

[2] Section 59 of the Indian Succession Act, 1925

[3] Section 61 of the Indian Succession Act, 1925

[4] Section 74 of the Indian Succession Act, 1925

[5] Section 18(e) of the Registration Act, 1908

[6] Section 2(f) of the Indian Succession Act, 1925

[7] Section 2(c) of the Indian Succession Act, 1925

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