What is a Will? – Essentials of a Valid Will

What is a Will - Essentials of a Valid Will
What is a Will – Essentials of a Valid Will

1. Introduction

What is a Will? Who can make a Will? What are the essential ingredients of a Will? Is registration of Will mandatory? You will find answers to these and more such questions here…

  • Definition – Will, Property, Testator, Beneficiary, Executor
  • Who can make a Will?
  • Essential ingredients of a Will
  • Registration of Will
  • Advantage of Writing a Will

2. Definitions – Will, Property, Testator, Beneficiary, Executor

Section 2(h) of the Indian Succession Act 1925 says –

“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.

Will is therefore a legal declaration, a clear description of how a person wants his or her property to be treated after death. It is an expression of the desire and wish of the person who makes it.

Property could be movable or immovable or both.

Testator is the person who owns the property and therefore has the Right to prepare his Will. But legally, he or she becomes a Testator only after death, as Will gets executed only after the death of the person who made it. Otherwise as long as the person is alive he or she can modify, amend, edit or discard their Will as many times as they want, though of course there is a defined legal process for doing so.

Beneficiary is the person who acquires property through the Will of the deceased. There can be several beneficiaries in a Will, though they may or not be legal heirs. Even a Charity can be a beneficiary. Will can also spell out guardianship of minor children, provisions for faithful servants or care providers, funeral wishes (instructions about burial and cremation), provision for funeral expenses, provision for payment of debt (if any), etc.

Executor is defined in Section 2(c) of Indian Succession Act 1925 –

(c) “executor” means a person to whom the execution of the last will of a deceased person is, by the testator’s appointment, confided;

Executor is the person entrusted with carrying out the wish of the deceased (Testator) as expressed in his Will. Executor is specified in the Will by the Testator. In cases where Executor is not mentioned in the Will, the Court appoints an Administrator who is made responsible for administering the estate (property) of the deceased.

3. Who can Make a Will?

  1. Person making the Will should be minimum 18 years in age
  2. Person wanting to make the Will should be mentally sound
  3. Any married woman who has her own property can make a Will
  4. Any deaf, dumb and/or blind person who is mentally sound can make a Will.
  5. Those who suffer intermittently mental unsoundness can make it during the time when he is mentally sound and conscious of his truth
  6. Person making the Will should not be intoxicated during preparation of the Will.

4. Essential ingredients of a Will

  • Will should be in writing
  • Details of property should be clearly mentioned
  • Intention to transfer property to specific individuals should be clearly mentioned
  • Beneficiaries to be clearly mentioned along with specific properties, share in property or amount of provisions for their maintenance from the property
  • Guardianships to be clearly specified, wherever mentioned.
  • Signature of 2 Witnesses who saw the Will being signed

Primarily, your Will should include your Name and place of residence, a description of all your assets and properties, Names of your relatives and any other beneficiaries to the Will and Names of the Executors of the Will. It is advisable to consult a legal expert who would ensure that your Will is legally valid and inclusive of all essentials to fulfill your final wishes.

A Will can be modified or changed by the person making it, anytime during his lifetime.

Section 63 of the Indian Succession Act, 1925

Execution of unprivileged wills – Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:

(a) The testator shall sign or shall 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, shall be so placed 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 and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or 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 be present at the same time, and no particular form of attestation shall be necessary.

Indian Succession Act, 1925 (Section 63)

5. Registration of Will

Registration of Will is not mandatory in India though Registration helps bring a stamp of authenticity on the prepared Will. In fact non-registration of a Will does not mean that the Will is not genuine.

6. Advantage of Writing a Will

  • Your documented Will is not only your desire or a wish but a legal testament of the manner in which your property would be disposed to the beneficiaries who may or not be your legal heirs.
  • Preparing a Will thus helps in distributing property after death. Else if a person dies intestate (which means ‘without making a Will’) his property or legacy may become a source of conflict, dispute or unnecessary litigation between people claiming a right on same.
  • You can make changes to your Will anytime during your lifetime. You can even revoke it if required.

7. Know more