What is a WILL?
A will is a legal representation of the intentions and desires, as the person who writes them, wants to distribute their property after their demise. A will only deal with self-owned property. The person whose desires the will represents is the testator, his estate subject to the will is the property and the beneficiary of the will is also called the legatee.
Types of WILL’s
As the name suggests, these Wills can be executed by certain people. Every soldier or aviator, who is in warfare, sailors presently at sea, any military medical officer on service in an expedition and any naval officer at sea can make a privileged will.
A privileged will is made for certain reasons for the above-mentioned persons. This is because their jobs are of a dangerous nature. Adding that they serve their country and at the same time, risk their lives for the same. Therefore, special provisions are made under Chapter IV of the Indian Succession Act for them.
Anyone who does not come under the category of a soldier or airman, who is in warfare, a navigator at sea, any military officer in service in an expedition, and any marine officer at sea can execute an unprivileged will. This is the most basic form of a will.
The Executor (or Administrator) of the Estate
- Chapter VI of the Indian Succession Act establishes the powers of the enforcer. It is fundamentally mentioned that all administrative tasks of the disposal of the assets are, according to the will, the duty of the executioner.
- The executor (or administrator) of the estate appointed by the testator has the power to take legal action in the name of the deceased.
- He has the power to sue if any cause of action arises.
- These do not hold the powers to sue for criminal injustices such as slander, assault, attempted murder, etc.
- He also has the power to take measures to recover the debt owed to the deceased.
- Most importantly, the enforcement officer has the power to dispose of the deceased’s property as he wishes. This is the main purpose of an executor.
- The executor does not have the absolute power to do the same, he must do it according to the wishes of the testator.
- In addition, the Manager does not have the power to “mortgage, sell or transfer by sale, gift, exchange or otherwise immovable property” without the permission of the court.
Basically, the executor can by no means contradict the text and the intention of the will.
Who can write a WILL?
Section 59 of the Indian Succession Act, 1925, lays down who is entitled to write a will. It is clear that any adult of a healthy mind (i.e. not a minor under the Indian majority Act) can draft an executable will.
Note: The Indian Succession Act, 1925, does not apply to Muslims since their laws are usually governed by the Muslim personal law.
The explanations according to Section 59 are as follows:
- A married woman is also entitled for writing a will about the property that belongs to her alone
- If you are deaf or dumb or blind, it does not incapacitate you from writing a will.
- If they understand what they are performing, they can write a will.
- Any person who is in a state of intoxication (voluntary or involuntary), illness or any similar cause cannot make any will.
Basically, anyone who is incompetent of understanding what the will says, the nature of his property, etc., are not able to make a will.
Essential to know before writing a WILL
- Everyone, at the age of majority and possessing a healthy mind, can write a will.
- A common misunderstanding is that only the rich have to make a will. That is not true.
- Disputes may arise when you dispose of your property, even if it is not much. The purpose of a will is to avoid all that trouble and ensure that your property is distributed according to your desires, even after you are gone.
- The person must have the rights to dispose of the property specified in the will.
- The property that is to be disposed of by the will can be moveable or immovable.
- The registration of a will in the presence of a registrar or a sub-registrar is not essential, although it certainly provides legal support for the will.
- A will can be registered at any time after writing
- The information on the document must be correct. Even the spelling of the names of the beneficiaries or of the testator on the will can lead to confusion and the will is annulled.
- At any time, there can be only one will existing. All earlier will be deleted with the newer ones.
Writing a WILL?
Although the laws of India do not provide for a particular format for writing a will, a format is essential for the will to be executed properly and without disputes and trouble.
A few details that should be in your will –
- The will should be titled as the LAST WILL AND TESTAMENT
- It should clearly indicate whose ultimate will and testament is the will is, i.e. Who is the deceased.
- Declaration: Like any legal document, it can also specify the testator’s address and other relevant identification and verification information such as the Aadhar number, and so on.
- It will specify that the testator is of sound mind at the time of writing the will.
- The testator has written the will of his own free will, i.e. They were not forced or coerced.
- Appointment of Executors: Administrators are those who have the absolute authority to dispose of the assets or estate of the decedent according to his or her wishes.
- This clause should also provide for a situation in which the executor can die before execution of the will.
- The executor should be given the power to take the assistance of experts such as lawyers, doctors, etc. if the necessity arises to execute the will.
- Appointment of the beneficiary: Beneficiaries are the persons who get the property of the decedent in the execution of the will.
- This clause is of the utmost importance since it indicates who gets what from the will.
- This clause should clearly indicate the value and worth of all assets that are disposed of by the will. More specifically, the information is easier to dispose of the property.
For example, the value of the house, the total quantity of the jewelry to be disposed of, the bank account numbers and their contents, etc., should be clearly mentioned.
- In the case of several beneficiaries, this should indicate how much each beneficiary should receive.
- The clause should also address the contingency in which the beneficiary dies before the testator.
- Miscellaneous: The testator may have other desires than those mentioned above and they must be mentioned under separate clauses.
- This can be the choice of the burial ground, the preferred method of last rites, whether the estate finance the funeral etc.
- If the testator has minor children, he may appoint a child who is entitled to education.
- The testator should also mention all assets that are not part of the will, if any.
- Declaration and Certification of witnesses
- Like the testator, the witnesses must also declare that they are of sound mind and have reached the age of the majority (in India under the majority law).
- The role of a witness is to ensure that the testator has made the will through his own free will and under no compulsion.
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