Why We Need to Execute & Register WILL in India

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A Will or testament is a legal declaration by which a person, the testator, names one or more persons as the executor to manage his/her estate and provide for the transfer of his/her property after his death. A Will can be made by anyone above 21 years of age in India.

The will can however be made only for self-acquired properties and not for ancestral properties. Even future properties can be bequeathed which accrue to the testator after the execution of the Will. The Will takes effect after the death of the testator and can be revoked only during his lifetime. A word of caution though is that the testator cannot bequeath his estate to a charity leaving his family in a state of poverty and thus depriving the family, without giving very good grounds for such disinheritance that would stand the scrutiny of a court of law.

NEED FOR A WILL:

There are quite a few advantages of executing a Will, namely:

  1. A well-drafted Will helps avoid family dispute regarding the property of the testator and in case a dispute arises, the beneficiary of the estate has a formidable document in his favour.
  2. The law of inheritance does not consider the fact as to whether the deceased wished or did not wish to let any of the family members inherit his property and in what proportion whereas by way of a Will the testator can apportion the property as per his wish
  3. At times it has been seen that the deceased had properties both immoveable and moveable which his inheritors may not know, however, a Will ensures that all kinds of property are fairly distributed by the testator during his lifetime.
  4. It is a very standard legal requirement now for transferring real estate, bank deposits, stocks & shares, interest in the business. A well-drafted & registered  Will ensures the legal requirements are met.
  5. The Will ensures that there are no bogus claims after the death of the testator.

Types of Wills in India

Different types of Wills executed in India both legally and practically:

1. Privileged Will 

Privileged Will is governed under the provision of Section 65 of the Act. As per the said provision, a Privileged Will means a Will made by a soldier who is being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea. It is necessary for such individuals to complete the age of 18 (eighteen years) in order to dispose off the property by way of a Will.

2. Unprivileged Will 

Unprivileged Will is governed under the provision of Section 63 of the Act. As per the said provision, an Unprivileged Will means a Will created by every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea. In simpler terms, such individuals who do not classify as a soldier, airman, or mariner will fall under the category of Unprivileged Wills.

3. Conditional Will 

A Will whose legality is contingent upon the happening of an event or fulfillment of a certain condition is known as a Conditional Will. Bequeathing a property as per the Will depends upon the happening or non-happening of a particular condition. As per Section 124 of the Act, “Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the Will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable”. Therefore, it can be understood that a Will comes into effect only after fulfilling the particular condition which can be either in the form a condition precedent or condition subsequent to the Will.  

4. Concurrent Will 

Concurrent Wills are the ones that are written by only one person, yet it covers a variety of aspects related to the disposition of the property. In simpler terms, it can be understood that separate Wills can be formulated by the testator basis the properties located in different geographical locations. One Will could deal with the disposal of movable properties while the other Will may deal with the disposal of immovable properties.

5. Mutual Will

Mutual Wills are Wills created by two or more persons in order to confer on each other reciprocal benefits. In simpler terms, it is an agreement entered into between two or more persons to dispose of their property to each other or to any third person as per the particular manner or mode agreed upon by the parties. The Hon’ble Supreme Court of India in the case of Kochu Govindan Kaimal and Ors. Vs. Thayankoot Thekkot Lakshmi Amma and Ors made some observation in relation to Mutual Will which is reproduced below for ease of reference:

“A Will mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee; that is to say, when the executants fill the roles of both testator and legatee towards each other. But where the legatees are distinct from the testators, there can be no question of a mutual Will”.

ELIGIBILITY TO MAKE A WILL:

  1. The testator should be of sound mind.
  2. He should be free from any undue influence or coercion.
  3. The making of the Will should be a voluntary act.
  4. The testator should be fully aware of the contents of the Will.

ESSENTIAL ELEMENTS OF A WILL:

The following checklist in a  Will helps ensure its enforceability:

  1. The Will should have the details of the testator, for example name, address.
  2. The need for making the Will should be spelt out along with the fact that the testator is of a sound mind and is making the Will voluntarily and there is no coercion.
  3. Use of unambiguous language in bequeathing of the estate.
  4. The name of the executor (The person named by the testator to execute the testator’s wishes) should be mentioned.
  5. The schedule of properties should be appended and
  6. The Will should be signed by the testator and attested by two witnesses.

REQUIREMENT OF REGISTRATION:

Though a Will is not required to be registered and can be drawn on plain paper also, it is desirable that the Will be registered. The  registration can be done with the Registrar of Assurances where the testator resides. The Will can be registered during the life of the testator or by the executor or legatee after the death of the testator. Later amendments should also be registered. Registration of the Will ensures that the Will cannot be tampered with, the authenticity of the Will is established, allegations of making the Will under duress can be deflected, the probate of the Will may not be required for getting leasehold properties mutated.

ENFORCEMENT OF A WILL:

A Will can be enforced by the  executor. He is the safe-keeper of the rights of the beneficiaries under the Will. The provision of the Indian Succession Act makes it mandatory for enforcement of rights under the Will only by way of a Probate. However, this bar does not apply to Hindus in India except if the immovable property is in Kolkata, Mumbai and Chennai. Probate means certifying of the Will by a court of competent jurisdiction. The Executor can apply for a grant of  probate in the court of competent jurisdiction by way of a proper application. It is advised to execute a  Will in India as per the Indian laws applicable for the assets located in India.

Conditions for executing Unprivileged Wills in India

The following are the conditions stipulated under Section 63 of the Act for executing Unprivileged Wills:

  • The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
  • The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
  • The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Conditions for executing Privileged Wills in India

The following are the conditions stipulated under Section 66 (2) of the Act for executing Privileged Wills:

  • The Will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.
  • It may be written wholly or in part by another person and signed by the testator. In such case it need not be attested.
  • If the instrument purporting to be a Will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his Will, if it is shown that it was written by the testator’s directions or that he recognized it as his Will.
  • If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.
  • If the soldier, airman or mariner has written instructions for the preparation of his Will but has died before it could be prepared and executed such instructions shall be considered to constitute his Will.
  • If the soldier, airman or mariner has, in the presence of two witnesses, given verbal instructions for the preparation of his Will, and they have been reduced into writing in his lifetime, but he has died before the instrument could be prepared and executed, such instructions shall be considered to constitute his Will, although they may not have been reduced into writing in his presence, nor read over to him.
  • The soldier, airman or mariner may make a Will by word of mouth by declaring his intentions before two witnesses present at the same time.
  • A Will made by word of mouth shall be null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged Will
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