The Hindu Business Line : ‘Writing or executing a Will is optional’

“Where there is Will there is a way,” so goes the adage. Lawyers, jocularly used to say, “Where there is Will there is litigation”. Ill drafted Wills entail in litigation. Recent changes in the Hindu Succession Act have only made Wills more relevant.

‘Will’

A Will has great weight in determining who has to succeed to the property of the deceased, leaving a Will.

In the absence of any Will regarding the properties, immovable or movable, the deceased’s legal heirs succeed to the properties according to the law that is applicable to them.

Had the deceased died leaving a Will, the properties will go to the legatees mentioned in the Will. Writing or executing a Will is optional in our country. All personal law in our land have their own scheme for inheritance or succession. But there is no bar in any of these personal laws for writing a Will.

What is a will?

It is a document by which a person makes disposition of his properties to take effect after his death.

What is the legal definition of a Will?

The Indian Succession Act 1925, which applies to intestate and testamentary succession, defines the word.

’Will’ means the legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his life time.

Who is the testator?

He who signs the Will document is called the testator.

Who can make or write a Will?

Any person who has completed the age of eighteen can execute a Will.

When does the Will come into force?

The Will comes into force immediately on the death of the testator.

What are the requirements of a valid Will?

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

He should know what he is doing and declare that it is his last Will and testament.

He should execute his Will without the influence of any other person. He should execute it out of his own volition.

In other words, he should have a strong Will and mind while making his Will.

It is his Will and he can Will away his properties as he likes.

Who are incapacitated for making a Will?

No person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know as to what he is doing.

Is there a format for making Wills?

There is no format for making Wills.

What is required is that it should not be vague of ambiguous. The intention of the testator should be clearly mentioned and formalities of attestation should be meticulously observed.

When does a Will become invalid?

A Will becomes invalid if:

It is not attested by witnesses by as required by law;

Any bequest is made by the testator to the to the attestor to the Will;

The intention or declaration of the testator is vague or ambiguous;

The Will has been cancelled and the Will has been executed by a person not qualified to do so

Can a person execute more than one Will?

Yes any number of Wills. But only the last Will, if proved by the party propounding it, can be acted upon.

Can a person make an oral Will?

Only Muslims can make oral Wills. Soldiers in the army and on duty can make such Wills and they need not be attested by witnesses. They are known as privileged Wills.

What is meant by dying intestate?

If a person dies without making any Will or any other arrangements such as settlement deed during his life time, he is said to have died intestate.

Is attestation of Will is compulsory?

It is mandatory. At least two witnesses should attest a Will.

What is meant by attestation?

“Attested” in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses, each of whom has seen the executant sign or affix his mark to the instrument.

In other words, the witnesses, who sign as witness, should see the person signing the Will in their presence and each of them signing in the presence of each other and in the presence of the testator, who declared the instrument as his Will.

How to revoke or cancel a Will?

If it is a registered Will, by executing a deed of cancellation referring to the earlier Will.

An earlier Will can be cancelled by writing a new one and mentioning about its cancellation in the new instrument.

Unregistered Wills can be cancelled by making endorsements to that effect in every page with date.

The declaration, as to cancellation, has to be signed by the testator.

It can also be destroyed by tearing into pieces or by burning it.

Is it compulsory to register a Will?

Registration of a Will is optional and is not required by law.

What is personal property?

A property in which a person has an interest which will pass on to his legal representatives or heirs on his demise, when he dies intestate.

Is there any provision for keeping a Will in safe custody and in secret?

Provision is there in the India Registration Act. If a person wants to keep his Will in secret, he can put the Will in a cover or folder and seal it. He should write his name and address on the cover and indicate that the contents are his Will.

Then he should handover the sealed cover to the Sub Registrar, designated under the Registration Act for the safe custody. He will be given a receipt. The testator during his life can take delivery of the sealed cover, on production of the receipt issued by the sub registrar, if need be.

Who can obtain the Will from the registering officer on the demise of the testator?

On the demise of the testator, the legatee or any other person can apply to the officer concerned for delivery of the sealed cover on proving his identity and on producing the death certificate. On being satisfied after due enquiry, the registering officer will handover the sealed cover, after taking an acknowledgement.

Is there any time limit for registering Wills?

No. Though any document under the Indian Registration Act has to be presented for registration within 120 days from the date of execution (signing), there is no time limit for registering a Will.

Is there any jurisdictional restriction for registering a Will?

Wills can be registered in any registrar’s office, on establishing the identity of the person presenting the Will for registration.

The author is a practicing lawyer based in Chennai

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