What is a will?
A will is a written document or testament by which the testator (writer of the will) describes and explains every detail of his assets and wealth and describes about the distribution of the said wealth and property and how it should be transferred to the legal heirs. The making of will ensures one about the safety of one's assets and wealth even after death and further devolvement to the next generations.
While, making the will in India by a Hindu, Buddhist, Jain or Sikh, the provisions as mentioned under the Indian Succession Act 1925 has to be followed and abided by in every aspect. The Mohammedan are not governed by the Indian Succession Act, 1925.
The Section 2(h) of the Indian Succession Act 1925 defines a "Will" as "the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."
In simple words, a will specifies the desire of a person, (the testator) who intends to willfully distribute his property or assets according to his desire, after his death.
One major point governing "will" Is that it is effective only after the person making the will dies.
Who can make a will?
Every person who is major and is capable of contracting can make a will given the condition that he has an estate to bequeath to someone post his demise through a testamentary document valid in the eyes of the law. As long as he owns a property which he can alienate or dispose he can create a will under the provisions of law being a major and of sound mind.
The section 59 of the Indian Succession Act 1925 describes about who can create a will.
The section reads as- "Every person of sound mind not being a minor may dispose of his property by Will.”
Explanation 1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.-Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.-A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.-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 what he is doing "
Certain essential characteristics of a will
Before making a will, the characteristics of a will are to be kept in mind. These characteristics are as follow;
- Legal Declaration- A will is a form of legal declaration that says about a person declaring his intention to pass on his property, wealth or estate to others or to his legal heirs.
- The declaration made should be related to the property of the testator and not mere to manage his property.
- The mechanism behind the will must be intended to take after the death of the testator.
- Revocability-A will can be revoked any time at the will and wish of the maker of a will.
The language of the will
As mentioned earlier, the motive behind any will is to create it for the mechanism of testator's intention of disposing his assets and property. Therefore, there is as such no bound rules regarding the language used in a will. No such technical words are to be used for constructing the will. It can be written down in any language but the language used must be clear and free from any form of unambiguity. The mind and intention of the testator must be reflected in a will.
Moreover, there are no boundaries regarding the handwritten or a printed will. It can be written in any form but should be signed appropriately by the maker i.e., the testator.
One more interesting fact about will is that it does not require to be made in a Stamp Paper. It can be made on any paper and that is as valid as made on a stamp paper. No, stamp duty is levied upon a will unless one goes for registration.
General structure of a will
There is no particular format or structure defined for a will and one can write or draft a will in any form that he or she wishes to but has to keep in mind that the following points must be covered so as to make the will cogent and comprehensible for all.
- Personal details (Testator)
- Declaration date
- Validate free will
- Details of Executor
- Details of Assets
- Details of Beneficiaries
- Signature of Testator
- Signatures of Witnesses (minimum 2)
Construction of a will
There is a general notion regarding the construction of a will " It reads as the court is entitled to put itself into testator's armchair ". The meaning of the line is that while determining the making or consequences of a will, a court has to fit himself into the mindset/ intention of the testator. The court has to consider each and every aspect the probability of making a will. The testator's background, circumstances, family relationships everything has to be kept in mind by the court while dealing with a will. The court should carry itself as far and in every possibility that it can while determining the expression and intention of the testator. Therefore, in construing a will "intention" Of the testator plays an important role.
Some of the guidelines from Supreme Court regarding the construction of will and its interpretation are as follows-
- The court has to determine the true, intention behind the making of the will, which can be gathered by reading it.
- The court has to look after the circumstances upon which the will is made. It includes the state of the testator's property, family etc.
- If, one of two reasonable constructions lead to inconsistency, the one making less hiatus must be prioritized.
- The effect should be given to every disposition contained in the will, unless the law prevents.
Construction of words in a will
Section-74 of the Indian Succession Act says, "It is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom."
It means that the use of technical words is not necessary for the construction of a will. If the words of the testator are displayed well, the will is sufficient. Even a simple flawless genuine construct of words which clearly tells that what the author wants to say about his estate and how the estate needs to be distributed among his loved ones makes a perfect will. There is nothing extraordinary in law which says that a will has to be made in a particular way or style.
Construction of Terms in a will
A writer of a will has to be careful while preparing will with these terms and need to know when to use where to avoid any ambiguity and dispute in future. If these terms are kept in mind while writing the will it will create a nice and clean will that will make the transfer and distribution of property among the legal heirs smooth and dispute free.
Section 99 of the Indian Succession Act. defines the Construction of terms in a will which are as follow;
(a) the word “children” applies only to lineal descendants in the first degree of the person whose “children” are spoken of;
(b) the word “grand-children” applies only to lineal descendants in the second degree of the person whose “grand-children” are spoken of;
(c) the words “nephews” and “nieces” apply only to children of brothers or sisters;
(d) the words “cousins”, or “first cousins”, or “cousins-german”, apply only to children of brothers or of sisters of the father or mother of the person whose “cousins”, or “first cousins”, or “cousins-german”, are spoken of;
(g) the words “issue” and “descendants” apply to all lineal descendants whatever of the person whose “issue” or “descendants” are spoken of;
Who should sign the will?
It is very clearly mentioned in Section 63 of the Indian Succession Act that the Testator or any body else on his instruction can sign or affix his mark on the will in a place which is easily readable and comprehensible that it was intended to be signed or affixed by the testator. The same section also mentions that two (2) or more witnesses have to attest the will who have seen the testator signing the will or affixing his mark on the will.
Registration of a will
No will is the only document which is not required to be registered as per the law in India. Registration of a will is a choice of the maker of the will The law and the Courts recognize both the registered as well as unregistered will and there is no difference between both of them in the eyes of the law. As per Section 18 of The Registration Act, 1908 will comes under the optional document to be registered.
But yes, if someone registers a will it adds to the authentication to the will.
Should you consult a lawyer before writing a will?
Law is something that requires lot of common sense and a bit of understanding of the law of the land so, it is always better to discuss with a lawyer before taking a big decision of life. A lawyer can be handy to sort out lot of questions that you may have while writing a will which others may not be able to provide you. It is always better to have an expert next to you when you are taking an important decision which is going to impact you and your family’s life forever and even after your death. So, it is suggested to consult a layer while drafting a will. Anyways, once a will is opened up a lawyer will be needed to move an application for probate of a will.