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All you need to know about the Last Will and Testament

Updated on :  

08 min read.

Last Will as the name hints is a legal document that communicates a person’s last wishes specified before his death.

Introduction  

The Last Will and Testament is a legal document by a person called the testator that states the distribution of his assets and possessions, also his wish regarding custody of minor dependents and management of accounts and interests. 

What does it include?

A Will does not need to adhere to any specific form or feature a certain language. However, the document must disclose the intention of the testator must make dispositions of his or her property that come into effect after his death. Hence, it will constitute the following:

  • Appointment of an executor who will administer the estate
  • Property or assets owned by the testator
  • Property or assets to be inherited by children or charitable trust or otherwise and the ratio of distribution
  • Care of minors that the testator is responsible for
  • Minors share treatment, till they are legally entitled to inherit it
  • Residual clause for distribution of assets that are remaining

How should it be executed?

The sole purpose of appointing an executor is to execute a will. The executor will be given the rights to ensure that all the contents of the Will be executed correctly. An executor is responsible for administering the estate of a testator.

When the testator does not appoint an executor in the will, the legal heirs can appoint an administrator to execute the will and carry out the executor’s responsibilities.

In some states, the probate of a will is mandatory. In the states where the probate is mandatory, the executor or legal heirs must apply to the district court for probate of the will. A probate court is a segment of a judicial system that primarily handles matters such as wills,  estates, conservatorships, and guardianship.  

What are the laws governing the last Will and Testament?

The last will and testament are governed by the Indian Succession Act, 1925. A will can be registered under the Indian Registration Act, 1908 with the Sub-Registrar of the area where the testator resides. It is not mandatory to register the Will. However, it is recommended to register a will as it would prevent the same from being challenged after the death of the testator. 

What is a valid Will?

A Will must comply with certain requirements to be valid. If it is not valid as per court it is as good as dying without a will. The requirements are:

  1. Legal age: The testator must be of legal age to make a will.  Most states consider 18 years of age as legal.
  2.  Testamentary capacity: The testator must be of sound mind, that is he should understand that he is making a will and understand it’s an effect
  3. Intent: A person has the intent to make a will if, at the time of the signing, he or she intends to make a revocable disposition of property in the event of their death.
  4. Voluntary: A will must be voluntarily made, it is not valid if it is forced upon
  5. Proper disposal of property: There has to be proper disposal of property among family and friends.
  6. Signed, Dated and Witnessed: For a will to be valid it must be signed, dated and must also have witness signatures. The number of witnesses will be as per the laws of the land.  

Consequences of no Will or testament

If a person dies without making a valid will then it is termed as intestate. When a person dies intestate, his/her assets and properties will be distributed according to personal laws.

The Hindu Succession Act, 1956, provides for the distribution of assets when a Hindu dies intestate, i.e. without making a will. Mohammedan Law governs Muslims in India. The inheritance of assets of a Muslim should be done as per Mohammedan Law. The assets of Christians and Parsis who pass away without making a Will are distributed as per the provisions of the Indian Succession Act, 1925.

Types of Wills 

Types of Wills generally include:

Unprivileged Will: Will created by a person who is not a soldier employed in an expedition or engaged in actual warfare or a mariner at sea is known as an unprivileged Will.

Privileged Will: For an unprivileged Will to be valid, it must meet the following conditions:

  • The creator of the Will must sign or affix his/her mark to the Will
  • The signature or mark of the testator must be placed such that it appears that it was intended to give effect to the writing as the Will.
  • The Will should be attested by two or more witnesses.

Conditional/Contingent Wills: A Will can be expressed to take effect only in the event of satisfying certain conditions or can be contingent upon other factors. Such a Will, which is valid only in the event of a happening of some contingency or condition, and if the contingency does not happen or the condition fails, is called a conditional or contingent Will.

Joint Wills: Joint Will is a type of Will wherein two or more persons agree to make a conjoint Will. If a Joint Will is intended to take effect after the death of both persons, then it would not be enforceable during the life-time of either. A joint Will can be revoked by either or the person at any time during the joint lives or after the death of one, by the survivor.

Concurrent Wills: Concurrent Wills are Wills written by one person wherein two or more Wills provide instructions for disposal of property for the sake of convenience. For instance, one Will could deal with the disposal of all immovable property whereas another Will deals with the disposal of all movable property.

Mutual Wills: In a Mutual Will, the testators confer upon each other reciprocal benefits. A mutual Will can be executed by a husband and wife, during their lifetime to pass on all benefits to the other person during their lifetime.

Duplicate Wills: A duplicate Will can be created by a testator for the sake of safety or safekeeping with a bank or executor or trustee. However, if the testator destroys the Will in his/her custody, then the other Will is also considered revoked.

Sham Wills: Sham Wills are wills executed purporting to be a Will, but held invalid as the testator did not intend it to have been executed as per his/her wishes. As per the Indian Succession Act, a Will made by fraud or coercion or by taking away the free agency of the testator is considered invalid.  

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