Essentials for Drafting a Valid Will Explained

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A Will is a legal instrument that permits a person, the testator to make decisions regarding the estate that how his estate will be managed and distributed after his death. It is a document in which a person specifies which methods should be applied in the management and distribution of his estate after his death. The law relating to Wills are found in The Indian Succession Act, 1925 (“Act”). Section 25 of this Act states that it applies to everyone in India except the Muslims.

Essentials of a Will

Essential characteristics of a Will are:

1. The intention of the testator must be to take effect after his death.

2. A Will is a form of the legal declaration of such intention.

3. The declaration must involve the manner of disposal of the property.

4. A Will can be revoked or altered during the lifetime of the testator.

According to Section 59 of the Act, the person making the Will must be major in age and of sound mind. The Section further states that a person ordinarily of unsound mind may make a Will during the interval of the soundness of his/her mind. But this Section prohibits a person from making a Will when he/ she is in a state of intoxication or illness which makes him/her incapable of understanding the consequences of his/ her act.

A Will can be drafted when all the essentials of a Will, as mentioned, are fulfilled and it is advised to consult the family lawyer before drafting the Will. A Will can either be drawn by the testator himself or through his lawyer. A Will is executed by ensuring the signature of the testator in the presence of the two witnesses and their signatures as well. It would be beneficial if a Will is registered and properly stamped as it helps in ensuring proper execution.

Execution of a Will

Whenever we need to start the process of execution of the Will, a Probate in India needs to be obtained from the court. A Probate of Will is a legal certification of the genuineness of the Will. It can be obtained by filing a petition before the court along with a schedule of the property and annexing a copy of the Will to the petition as well. It should be expressly prayed to the court to grant probate to carry out the intention of the testator.

A Will Contains the Following Details

1. The name, age, address, and other details of the testator should be mentioned because it will help in identifying who is making the Will and when is it has been drawn.

2. It is very important to obtain the declaration. The testator declares that he/she is of sound mind and free of any coercion while drawing the Will.

3. The details of the beneficiaries must be mentioned of this Will and to whom shall the assets be divided should be given as their name, age, address, and relation to the testator.

4. It is very important to appoint an executor of a Will who would make sure that the Will is carried out according to the directions provided by the testator. The name, age, address, and relation to the testator should be specified as well.

5. It is important to mention all the details of the assets and properties that a testator has, and which are the ones that shall be covered in the Will. He/she can also mention any specific assets that are there.

6. The share that each beneficiary has on the property or the specifics of who shall get what is to be mentioned in detail. If the asset is to be given to a minor, then a custodian for the minor should also be listed in the Will.

7. The testator should give directions in terms of executing the Will and should specify if there are any instructions.

8. There should be a signature by the testator in the presence of at least 2 witnesses. The witnesses do not need to know the details of the Will they just have to verify that the signature by the testator was done before them.

9. The testator should sign with the date on the Will after the last statement.

Laws by which Will is Governed

The laws that govern the transfer of property through a Will are:-

1. The Indian Succession Act, 1925;

2. The Code of Civil Procedure, 1908;

3. The Indian Registration Act, 1908;

4. The Indian Stamp Act, 1899.

Grounds on which Will can be Challenged

A Will can be challenged on the following grounds:

1. There needs to be a presence of coercion, fraud, and undue influence to establish that the Will was not drawn with a clear intention and the testator was under pressure.

2. There may be a presence of certain elements in the Will which could give a reasonable understanding that there was some transgression with it.

3. The Will may not depict an intention on behalf of the testator to carry out the Will or execute it. Lack of testamentary capacity implies that the testator might not be of sound and reasonable mind while drawing the Will.

4. If the signature of the testator along with those of the two witnesses is not present then it can be a ground to challenge the validity of the Will.

5. If the testator did not know about signing the Will then it can be taken to be a ground for challenging the validity of the Will.

Cases

In the case of Rani Purnima Debi v. Kumar Khagendra Narayan Deb,[1] it was observed that if the dispositions made in the Will might appear to be unnatural, improbable, or unfair in the light of relevant circumstances; or the Will might otherwise indicate that the said dispositions might not be the result of the testator’s free Will and mind, even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court.

In the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors., the Supreme Court had observed that mere exclusion of the natural heirs or giving of lesser share to them, by itself, will not be considered to be a suspicious circumstance.

[1] 1961  251 SC

Authors: Sakshi Shairwal and Pragati Gupta (Sakshar Law Associates)

Adv. Sakshi Shairwal, Head, Sakshar Law Associates

 

 


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