A Will, what why who and how to write a Will
A Man, who does a good planning will always do his duty in time and at an appropriate time. It is very essential to understand that whether the man owns properties worth several crores or even a single House Plot, but it is the duty that owner to make arrangements for the transfer of properties to the heirs; by the law and inherited rights to be shared/transferred to the next legal heirs/successors, while the owner is alive.
I observed that Certain intelligent and precautionary man do the partitioning of the properties and settle the properties in a justified and in an equal manner to all the legal heirs when they are alive, but keep some properties in the personal name so that the family/children would not desert him or his wife. As such, optionally, owner intends his wish of distributing the properties through a Will, so that while he is alive, he owns and feel pride of his properties and assets, but at the end his Will shall/will do the rest.
In many other cases, when some of the legal heirs, like the first son usurps away or ignores the property right to girl children, the father will have no other way, or to fight with his own children, except writing of a WILL, which a Will, upon his death is transferred/disposed to the legal heirs and according to his personal wish.
Therefore, Will plays an important role in transferring the properties by the owner/testator while he his alive, but the actual transfer would take place only after his death.
This below portion of this post intends to inform you about the salient features of Will.
What is Will?
Indian Succession Act 1925 Section 2 (h)defines that
“Will” means 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.
Why a Will means to you?
A Will is your intention expressed as to what should happen to your property after your life. A Will though executed when you are alive, your Will can take effect only after the end of your life. When your Will takes effect, the person written won’t be witnessing the transfer of property, but a succession will take effect according to the personal wish of you and your intentions. This succession does not mean that your legal heirs are dividing their share or their right, but it means that according to your wish, the property would succeed to the persons to whom all you have conveyed the property as mentioned/conveyed in the Will.
What does it mean CODICIL?
Indian Succession Act 1925 Section 2(b) defines it as an Instrument made in relation to a Will and explaining, altering or adding to Will’s depositions, and shall be deemed to form part of a Will. The Codicil is a formal document and has all the characteristics of a Will- Where there is a distinct disposition made by a Will the disposition cannot be revoked by a Codicil except through the medium and use of Words equally clear and distinct.
How a Will shall be made?
As per Section 63 of the Indian Succession Act 1925 the following rules to be followed:-
a) The testator shall sign or affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
b) The Signature or mark of the testator, or the signature of the person signing for him, a sign shall so place that it shall appear that it was intended thereby to give effect to the writing as a Will.
c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the Will, in the presence of and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one witness should be present at the same time, and no particular form of attestation shall be necessary.
It is pertinent to note that Under Section 63 of the Indian Succession Act 1925, the following Conditions are must
a) the first condition-requisite to render valid any testamentary disposition is that such disposition should be in writing though no particular form is required. But by HANDWRITING by the testator himself/herself makes a Will powerful.
b) The next condition prescribed for the validity of a Will is that it should be duly signed by the Testator.
c) The next statutory condition is that it should be attested by at least two witnesses.
Please note that the Testator must sign or affix his marks to the Will or it must be signed by some other person in his presence and by his direction.
Who can make Will and eligibility?
Section 59 of the Indian Succession Act defines
a) Testator shall be of a Sound mind
b) Not a minor
REMEMBER “Sound and disposing mind is a mind of the natural capacity not unduly impaired by old age, enfeebled by illness or tainted or morbid(disease) influence.
What that can be Disposed of/Bequeathed by a Will
A property for which the Testator/You are the owner, such property is capable of being transferred.
A Property which cannot be legally transferable cannot be Bequeathed
A person having a life estate in the property, cannot make a Will in respect of such Property. Please note that “Life Estate” means, if you are only allowed enjoy the property, then such property cannot be Bequeathed.
PROPERTY: Under Section 2(h) and 59, property means not only the property owned by you on the date of Will but also those which you may own after that and before your end of life.
SIGNATURE AND ATTESTATION
The testimonium clause and the attestation clause are the fulcrum point of a Will. If these are not made strictly according to stipulations as prescribed under Section 63 of the Act. the Will most likely be considered surrounded by suspicious circumstances and may not fall within the satisfaction of Judicial Conscience.
2 Witnesses are a must.
Registration of Will -Stamp Duty
No Stamp Duty is chargeable on a Will in terms of Section 3 Schedule I of the Indian Stamp Act 1899, a registration is optional in terms of Section 18 (c) of the Registration Act 1908
Where a Will is contained in one Sheet
IN WITNESS whereof I, the said A, B, have hereunto signed at ……this the …..day of ……..2018
Where a Testator puts his Thumb-mark
IN WITNESS whereof I, the said A, B, have hereunto affixed my Thumb-mark at the end of the Will at ….this the …..day of ……..2018
Sd. Left-hand thumb-mark of A.B.
Where a Will is contained in Several Sheets of Paper
IN WITNESS whereof I, the said A, B, have hereunto signed my name at the end of this and the preceding three sheets of paper at ….this the …..day of ……..2018
Where the Testator puts his Signature at the End and his Initials on each Correction
IN WITNESS whereof I, the said A, B, have hereunto signed at ….this the …..day of ……..2018, and also initialled the additions and alterations appearing on page…and line…..of this my Will.
Where Another puts his signature by the Direction of the Testator
IN WITNESS whereof I, C.D. of ..by the Direction and in the presence of the testator, the said A.B. have hereunder set my Signature at….this the …..day of ……..2018
For A.B. the Testator
Where the Will has been signed by the Testator (usual form)
SIGNED by the Said A.B, as his last Will and testament in the presence of us both present at the same time, who in his presence and at his request and in the presence of each other have hereto subscribed our names as witnesses
Name and Description of the Said Witness:
- Sd. CD
- Sd. EF
The above inputs describe the fundamental features of a Will. In continuing post, I will be covering a lot on this topic.
Note: You may contact us for Will Preparation and Probate of a Will.
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