Last Will as the name hints is a legal document that communicates a person’s last wishes specified before his death.
- What does it include
- How should it be executed
- What are the laws governing the last Will and Testament
- What is a valid Will
- Consequences of no will and testament
- Types of wills
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.
A probate court supervises the executor to ensure that the wishes in the Will are carried out.
A probate court is a segment of a judicial system that primarily handles matters such as wills, estates, conservatorships, guardianship.
What are the laws governing the last Will and Testament
The law of succession is governed by the Indian Succession Act, 1925. However, for the Will, personal laws also come into play. For example for a Muslim, inheritance and succession matters are governed by the Muslim personal laws. As per this law, a Muslim may dispose of only one-third of his property which is left after payment of funeral expenses and debts without the consent of his heirs. Also for Indian Christians and Parsis, the Will stands revoked upon marriage and hence needs to be made again.
It is not mandatory to register the Will if it is registered with the sub-registrar under the Indian Registrations Act,1908 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:
- Legal age: The testator must be of legal age to make a will. Most states consider 18 years of age as legal.
- 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
- 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.
- Voluntary: A will must be voluntarily made, it is not valid if it is forced upon
- Proper disposal of property: There has to be proper disposal of property among family and friends.
- 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 will is intestaste the state becomes the executor of the estate. In settling the estate, the state decides how to distribute the property and who receives the payment first. Even the guardianship arrangements are decided by the state keeping in mind the best interests of children.
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.