What is Will?
A Will may be a legal declaration of an individual on a document regarding the distribution of his assets after his death. It is a unilateral document that takes effect upon the death of an individual allowing you to form an informed decision on how your wealth, property, and assets will be distributed on your death.
Will maybe a legal instrument but there's no prescribed format of it as it is often handwritten or typed on any document and not the stamp paper. A Will could also be revoked or altered by the owner at any time before his/ her death.
Essentials of a valid Will:-
A Will has the following important characteristics:
The will can only take effect after the death of the testator.
A Will is a form of a legal declaration of such intention.
The declaration must involve the manner of disposal of property.
The Will can be revoked or altered during the lifetime of the testator
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Who can make a Will?
As per the Indian Succession Act, 1925, the person making the Will must be of:-
Moreover, Section 59 states that an individual ordinarily of unsound mind may make a Will during the interval of the soundness of his/her mind. The section prohibits an individual from making a Will during the state of intoxication or illness which makes him/her incapable of understanding the consequences of the act.
What should be included in a will?
Details to be included in a will are:-
Details of the testator - The name, age, address, and other details shall help in identifying who is making the will and when it is being drawn.
Declaration - It is very important that the testator declares that he/she is of sound mind and free of any coercion while drawing the will.
Details of the beneficiary- The details of who shall be benefiting out of this will and to whom the assets shall be divided should be given. The details to be included are their name, age, address, and relation to the testator.
The executor of the will - It is very important to appoint an executor who would ensure that the will is carried out according to the directions provided by the testator. The name, age, address, and relation to the testator should be specified as well.
Details of property and assets - It is pertinent to list out all the details of the assets and properties that a testator has and shall be covered in the will. He/she can also list out any other specific assets present.
Division of share- The share that each beneficiary has on the property or the specifics of who shall get what is to be listed in full detail. If the asset is to be given to a minor, then a custodian for the minor should also be listed in the will.
Specific Directions - The testator should give directions in terms of executing the Will and should specify if there are any instructions.
Witness - There should be a signature by the testator in the presence of at least 2 witnesses. The witnesses do not need to know the details of the will; they just have to verify that the signature by the testator was done before them.
Signature - The testator should sign with the date on the will after the last statement.
Is registration of a Will mandatory?
The Registration Act, 1908 provides a list of documents for which registration is optional. Wills are covered under clause (e) of section 18 of the Registration Act, 1908.
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Thus, Registration of a Will is not compulsory and depends on the choice of the testator. Typically, the testator will have to visit the office of the sub-registrar of the area for registration of his / her Will. The personal appearance of the testator before a government official with the original Will adds to the reliability and trustworthiness of the Will. A registered will provide strong legal evidence against challenges about the mental capacity of the testator to make a Will (whether due to illness or due to influence of alcohol or medication etc.).
Importance of registration of will - Registration reduces the chances that the Will may be challenged as being a forgery. However, other challenges to a Will as being signed under the undue influence are still open. The other advantage of registration is that the Will is in safekeeping at the office of the Registrar. The Will may only be withdrawn from the Registrar by the testator or his agent during his lifetime. On the testator’s death, the Registrar may permit an applicant to take a copy of the Will. However, the original Will is still kept in the deposit with the Registrar. This ensures that the Will does not tamper with subsequent to the testator’s death.
In the case of a registered Will, all subsequent Codicils should also be registered. Any non-registered alterations, modifications, explanations, or deletions are not accepted by courts.