Will
Making a Will ensure one’s property devolves as wished, and the right heirs receive their fair shares. Under the Indian Succession Act 1925, a Will is a legal declaration of the intention of the testator (Will Maker), with respect to his property which he desires to be effective after his death.
After the death of a person, his property devolves in two ways – according to his Will i.e. testamentary, or according to the respective laws of succession, when no Will is made. In case an individual dies intestate (no Will is made), the property devolves as per the laws of succession.
Law of succession
The law of succession defines the rules of devolution of property in case a person dies without making a Will. These rules provide for a category of persons and percentage of property that will devolve on each of such persons (called the legal heirs).
What is a Will
Will is a legal declaration for the distribution of one’s property among his family members or to an outsider. Certain formalities must be complied with in order to make a valid Will. It must be signed and attested, as required by law.
A Will is intended to dispose off one’s own property. There must be some property which is being given to others after the death of the testator.
A Will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator . It has no effect during the lifetime of the testator.
A testator can change Will
A testator can change his Will, at any time, in any manner he deems fit. One must note that a Will or codicil is alterable or revocable. They can be altered or revoked at any time.
Who can make a Will?
Every person of sound mind, and not a minor, can make a Will. If a person is of unsound mind at the time of making a Will, the Will is not enforceable.
A Will, obtained by force, coercion or undue influence, is a void Will as it takes away the free will (wish) of the person. A Will, made under influence of intoxication or in such a state of body or mind, sufficient to take away free will of the testator, is void.
When a Will may be Executed (Made)
A Will can be made at any time in the life time of a person. There is no restriction on how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable. A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.
“Will”can be registered
Though the registration of a Will is not compulsory, it can be registered with the sub-registrar. If, at any time, the testator wishes to withdraw the Will, he can do so. A Will also can be sealed and kept in safe custody with registrar or in Bank.
On the death of the testator, an executor of the Will or a heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will.
If there are no objections, the court will grant probate. A probate is a copy of a Will, certified by the court, and is conclusive evidence that the Will is genuine.
Codicil to the Will
If a testator intends to make a few changes to the Will, without changing the entire Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will.
In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court.
If no objection is received, the probate will be granted. It is only after this that the Will comes into effect.
