Matters of will

I have always maintained that everyone should write a will. A person who doesn't do so could cause untold miseries to those near and dear ones left behind.

What is a will?
However, first we must understand the exact nature of this document and the significance thereof. The term '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.

The term Will defined u/s 2(h) of the Indian Succession Act, means the legal declaration of the intention of a testator with respect to his property which he desires to take effect after his death.

Where there are certain formalities required by statute for making a declaration regarding his intention and if those formalities are not complied with, the document cannot constitute a valid will.

A will can be drawn up for several purposes, such as for disposal of property after death, appointing a testamentary guardian, exercising a power of appointment and revoking or altering a provision of a previous Will.

Therefore, the four salient characteristics of a will are ---

1. There must be a legal declaration
2. Such declaration must be with respect to the property of the testator
3. The declaration must be intended to operate after the death of the testator.
4. Lastly, in order to hold a document to be will, it has to be proved that the same is in conformity with provisions as regards for execution and attestation in accordance with Section 63 of the Indian Succession Act.

It's preferable to make a will instead of intestacy. A person of full testamentary capacity can dispose of his property by means of a formal valid will. The reasons are:

• The most obvious reason would be that the testator does not wish his property to devolve in accordance with the intestacy provisions.

  A will is a personal document and it is preferable to use this as the last effective and beneficial act then to allow the impersonal provisions of intestacy to take effect.
• A testator can appoint executors to be his personal representatives. Such executors can be chosen personally by him so that he can be certain that his estate will be well administered by persons in whom he has confidence.
• Under intestacy the administrators, before appointment, must provide an administration bond and also sureties as to the due administration of the estate. These are not necessary for executors, since the testator, by naming them, has indicated his faith in them.
• A testator, by will, can appoint a guardian for his infant children.
• Under intestacy, if there is a minority or life interest, the personal representatives or trustees have the powers to investment conferred by law.

Different Kinds of will
Nuncupative will: A testament by word of mouth or without writing is called Nuncupative will. However, Nuncupative wills are now abolished.

Holograph will: A holograph will is one that is wholly in the handwriting of the testator. A holograph will is considered to be a very good form of will, because it is in the handwriting of the testator and its authenticity is enhanced, for the said reason.

Conditional or Contingent will: A will may be expressed to take effect only in the event of the happening of some contingency or condition and if the contingency does not happen or the condition fails, the will is not entitled to probate.

Duplicate will: Where a will is executed in duplicate, the testator keeping one and depositing the other with some other person, it is called a duplicate will.

The duplication is done for greater security and the deposit is usually with the executor or trustee. Note than where the testator mutilates or destroy the one in his own custody, it is revocation of both.

Concurrent will: A testator sometimes makes two wills, one relating to his property in his native country and other relating to his property in some foreign country.

In such a case, the wills are wholly independent and, probates may be granted to both the wills separately. But, if the wills are relating to the properties in both the places, both wills must be included in the probate.

Sham will: Where a document purporting to be a will is deliberately executed with all due formalities however, for a collateral object, it is to be held null and void.

Similarly, where the execution of the will is brought about by fraud, undue influence or coercion, and the will is not the act of a testator but is really that of the person who is responsible for such fraud, undue influence or coercion, it stands invalid.

To Sum

• Every person, even of meagre means, should prepare a will.
• It is not enough to hold the assets in joint names or designate a nominee. Such persons do not automatically get title to your assets. The will supersedes everything else. If one dies intestate (without a will), any distant relation can stake a claim to your assets and matters may lead to litigation.
• It is advisable to appoint more than one executor, and preferably an odd number. In case of any dispute, majority prevails.
• None of the executors or beneficiaries should attest the will as witness.
• An executor can also be a beneficiary but it is preferable to avoid such a situation.
• Sign every page in full to ensure that no one can fraudulently change or insert pages.
• Make more than one copy of the original will (photocopies will not do) and keep them safely at different places.
• Though not a necessity, it is always safe to register your will. The sub-registrars are empowered to collect registration fees for all documents submitted for registration which is subject to the Registration Act and rules pertaining to that state.

  Any person wanting to execute and register his will has to do it in person and nobody else can represent him for registration of the same. The fees to be charged by the sub-registrar has got no bearing to the value of the wealth of executor.

I have come across so many cases of sufferings due to a person passing away without making a will that, at the cost of hurting you, I insist that you make a will, notwithstanding your financial profile.

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