A will or a testament is the legal documentation expressing the wishes of the person who is making it in regard to the distribution of his/her assets or property and the custody of minors (if any) after the testator’s demise.A will is important for succession planning for individuals to ensure that after his/her demise, there are no disputes amongst legal heirs. The Will names an executor who is to be entrusted with the duty to carry out the wishes of the deceased. It also provides the executor(s) with instructions on how the estate should be distributed.
The testator must be of “sound mind” to make a Will, which means that:
● The testator understands he or she is making a Will and knows what a Will is;
● The testator understands his or her relationship to those mentioned in the Will; and
● The testator or the maker of the will should be aware of the quantity of assets or property that he or she owns, what part of that property is owned by him/her and on how he or she wants it to be distributed.
To ensure that the will is still according to the needs of the testator and the distribution of property is accordingly done, its revision, time to time is important.It is especially important to review a Will on the following events:
● The testator signs a marriage or divorce (a change in marital status may void the previous Will);
● There is a significant change in the amount of money and property the testator owns;
● The executor or a significant beneficiary in the Will dies;
● There is a birth or adoption of a child in the testator’s family;
● The testator changes his or her mind about the provisions in his or her Will.
How to use this document
To be into force, a Will does not necessarily need to be in a specific form or in a specific language. However, it should be documented in a form which clearly states the intention of the maker regarding the distribution of the property after his/her demise.
A typical Will usually states that all the debt of the estate should be cleared(although they are payable anyway). It names an Executor, who will be responsible of administering the estate, and then set out the powers of the Executor(s) in administering the estate. It then specifies the assets, properties, or money, which is to be distributed. After giving all the gifts or paying all the debts, the left after portion is known as the residue of the estate. A clause is to be specified in Will regarding the distribution of the residue. The Will is valid only after it is signed by the testator and two witnesses in the presence of each other.
Why is it recommended to register a Will?
It does not mean that if a will is not registered, it isn’t genuine. The legal heir can still fight for the same but why is it recommended to get the will registered?
A will is not the only document which states the distribution of the deceased person’s property, according to the Government. When the testator has demised, the executor mentioned in the Will has to appeal for the testamentary proceedings in the civil court and this should be done within two years of the testator’s demise. Also, the executor is responsible to submit the proof which confirms the testator’s demise and they should give a confirmation that this is the last will and the correct testament of the deceased.
The court gives a notification to the departed benefactor’s legitimate beneficiaries to document complaints if any to the allowing of probate or reference distribution in the neighborhood paper. The court likewise affirms if the will submitted is the real last will of the expired individual. It likewise affirms whether the departed benefactor properly executed and verified the will as per the law. Likewise, it gathers confirmation on whether the deceased benefactor was of sound brain when they made a will. At last, the court gives a letter of probate or a letter of organization, referencing the important focuses are fulfilled.
One can challenge the will by guaranteeing the deceased benefactor was intellectually unsound while making the Will. Additionally, can guarantee that the will was changed subsequent to being agreed upon. During such occasions, an enlisted Will helps the court by being a bit of legitimate proof against these charges. One can’t demolish, take, damage or mess with the enlisted will. Thus, the court won’t question the will’s validness. This enables the advantage conveyance to procedure to move calmly without bedlam or disarray.
Applicable laws
In India, the Indian Succession Act, 1925, governs the law of succession. However, for some religions, personal laws also come into play in respect of the assets which can be given away through a will. For instance, matters relating to succession and inheritance of a Muslim are governed by Muslim personal laws. The general rule under Muslim personal laws in India is that a Muslim may, by his will, dispose only up to one-third of his property which is left after the payment of all the funeral expenses and the clearance of all debts without any consent from his/her heirs.Similarly, in the case of Indian Christians and Parsis, upon marriage a will stands revoked so needs to be made again.
Further, while it is not necessary to register a will, if it is registered with the Sub-registrar under the Indian Registration Act,1908, it would prevent the same from being challenged after the death of the testator.
Further, the process of writing of the will can also be videographed, and a video recording of the making of will is admissible for evidence under the Evidence Act, 1872.