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Wills: Procedure and requirements

K. Krishnamurthi

A WILL is a document by which a person makes a disposition of his property to take effect after his death.

What is the legal definition of a will?

A legal declaration made by a person with respect to his property, which he desires to be carried on to somebody of his choice after his death, according to Section 2(H) of the Indian Succession Act, 1925.

What is the particular character of a will?

A will is ambulatory and revocable during the lifetime of the testator who makes the will. It comes into force immediately after the death of the testator.

What is codicil?

A codicil also has all the characteristics of a will regarding attestation, and so on. A codicil is supplementary to a will. For instance, a testator makes a bequest to A and after some time, he revises his views and wants to alter the disposition. He can do so by executing a fresh will or by executing a codicil to the existing will. He can say the bequest referred to in the will be taken by B and not A. Or any omission in the earlier will can be incorporated in a codicil.

The codicil should also be probated along with the will.

Who is a testator?

A testator is a person who makes the will.

Who can execute or make a will?

Any person who has completed eighteen years of age can make a will.

What are the requirements of a valid will?

What is essential is the mental capacity of the maker while executing the will.

He should execute his will without any influence from any quarters.

He should have strong will and mind while making his will. It is his will and he can will away his properties as he likes.

Can any will be challenged in a court of law?

If a will was executed under coercion or under undue influence and was executed without application of the mind of the testator, the same can be challenged with sufficient proof of such allegations.

Can a person make any number of wills?

Yes. But only the last will, if proved by the party propounding the same, can be acted upon.

Is there any format for making a will?

There is no form for the will. Nor any law has prescribed any format.

Can a person make an oral will?

Only Muslims can make oral wills. Soldiers in the army on duty can make wills that need not be attested. Muslims can make oral gifts of immovable property as well.

What is personal property?

The property in which a person has an interest, which will pass to a man's personal representatives when he dies in testate.

What is dying intestate?

A person is said to die intestate when he dies leaving the property without any testamentary instrument or non-testamentary instrument. Testamentary means a document or instrument relating a will. Non-testamentary instrument means any document other than will. Intestate occurs when a person dies without making a will.

When does a will become invalid?

A will becomes invalid:

  • If it is not attested by witnesses as required by law.

  • By any bequest made by the testator to the attesters to the will.

  • If the intention or declaration of the testator is vague or ambiguous.

  • The will has been cancelled, and;

  • A person not qualified to execute the same has executed the will.

    (The author is a Chennai-based advocate and notary public.)

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