What is a Will?
According to the Indian Succession Act, the will is a legal wish of the person writing it, of how he wants his property to be distributed after his death.
A will is a document made by a testator (a person making a will) before his death, where he expresses how he wishes his property to be distributed after his death. The document becomes legally enforceable only if it is written and signed by the testator and at least two witnesses who have seen the testator signing the will. It comes into effect only after the death of the testator and has no significance during his lifetime.
Though it is not compulsory to register a will, the testator may choose to register it with a the Registrar or Sub-Registrar of the district court under whose jurisdiction the property lies. It is always advisable to register a will as registering gives it a legal backing in case of any disputes which may arise in the future, such as disputes regarding the validity of the will. The testator can also choose to keep the will in safe custody. The will can be withdrawn at any time.
Who can make a will?
Any person who is a major and has good mental health can make a will. A will obtained by force or undue influence will not be valid as it has not been made by the free will of the testator.
A person can make a will at any time during his lifetime, provided he is a major. There is no restriction on age or the number of times a will can be made.
Purpose of a Will
It is important for a person owning any property to draft a will because it gives him control over the distribution of his property. This enables a smooth transfer of property to the people the testator wishes, after his death.
If the testator has minor children, he can provide for their care in his will.
Succession of property often becomes a point of conflict among relatives or successors of a dead person. A will can help avoid such conflicts.
The testator may also wish to donate his property to charity or any institution. He would not be able to do this in the absence of a will.
In case a person dies without creating a will, the laws relating to succession of property will take effect, which will decide who will receive shares in the property and the percentage share that they will receive.
What property does the will cover?
The will covers only such property of which the testator is the sole owner. In case of property jointly owned by the testator with any other person, consent of all the parties jointly holding the property is required to execute the will.
How does a will come into force?
The testator appoints a person called as an executor to look after the property in the will after his death. If not, the court appoints an executor. On the death of the testator, the appointed executor can apply to the district court for an order confirming the authority of the executor to take care and distribute the property. The district court will study the will and if the legal heirs of the testator have no objection to the will, the court will authorise the executor to deal with the property as per the provisions of the will.