guide to writing a will

In this blog post, Suprateek Neogi, from Rajiv Gandhi National University of Law, Punjab, describes in detail about the process of writing a will.

What is a Will?

A will is a legal representation of the intentions and wishes of how the person, who writes it wants to distribute his or her property after their demise. A will only deals with self-owned property. The person whose wishes the will represents is the testator, his property subject to the will is the estate and the beneficiary of the will is also called the legatee.

In the case of “Maturi Pullaian v. Maturi Narasimham”, the court ruled that registration of a will is not compulsory. A will which is properly signed and clearly expresses the wishes of the testator will be legally valid even if it is not registered with the registrar. This exception falls under Section 18 of the Registration Act, 1908 which regulates the registration of official documents.

Types of Wills

  • Privileged Wills

As the name indicates, these wills can be executed by certain people. Any soldier or airman engaged in warfare, mariner currently at sea, any military medical officer on duty in an expedition and any naval officer at sea can make a privileged will.

A privileged will is made for the above-mentioned people for specific reasons. This is because their jobs are of a dangerous nature. Adding to that, they are serving their country and at the same time, risking their lives for the same. Hence, special provisions are made under Chapter IV of the Indian Succession Act for them.

  • Unprivileged Wills

Any person who does not come under the category of a soldier or airman engaged in warfare, mariner currently at sea, any military medical officer on duty in an expedition and any naval officer at sea can make an unprivileged will. This is the most common form of a will.

The Executor (or Administrator) of the Estate

  • Chapter VI of the Indian Succession Act specifies the powers of the executor. It basically mentions that all the administrative tasks of disposing of the assets as per the will is the duty of the executor.
  • The executor (or administrator) of the estate, as appointed by the testator, has the powers to take legal action on behalf of the deceased.
  • He has the power to sue in case of any cause of action arising.
  • These do not include the powers to sue for criminal wrongs like defamation, assault, attempt to murder etc.
  • He also has the authority to take steps to recover any debts owed to the deceased.
  • Most importantly, the executor has the powers to dispose of the property of the deceased as per his wishes. That is the main purpose of an executor.
  • The executor does not have the absolute power to do the same, he has to do it as per the wishes of the testator.
  • Further, the administrator does not have the powers to “mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property” without the permission of the court.

Basically, the executor cannot contradict the text and the intent of the will at any point.

Who Can Write a Will?

Section 59 of the Indian Succession Act, 1925 specifies who all are eligible to write a will. It clearly states that any adult of a sound mind (i.e. not a minor under the Indian Majority Act) can write an executable will.

Note: The Indian Succession Act, 1925 is not applicable to Muslims, as their laws are mostly governed under Muslim Personal Law.

Explanations under Section 59 are as follows

  • A married woman is also eligible to write a will if she can isolate the property solely belonging to her and not on anyone on whom she may be dependent i.e. husband or parents.
  • Being deaf or dumb or blind does not incapacitate you from writing a will.
  • If they know what they are doing, they can write a will.
  • Any person under a state of intoxication (voluntary or involuntary), illness or any similar cause cannot make a will.

Basically, anyone who is incapable of understanding what the will is saying, the nature of his or her property etc. are not considered capable of making a will.

Essentials to Know Before Writing a Will

  • Any person, of the age of majority and of a sound mind, can write a will.
  • A common misconception is that only the rich need to make a will. That is not true.
  • Disputes may arise while disposing of your property, even if it is not a lot. The purpose of a will is to avoid all that hassle and your property is distributed as per your wishes even after you are gone.
  • The person must have the rights to dispose of the property mentioned in the will.
  • The property to be disposed of by the will may be moveable or immoveable.
  • Registration of a will before a registrar or a sub-registrar is not essential, although it certainly provides legal backing to the will.
  • A will can be registered anytime after the writing of the same
  • The details on the document must be accurate. Even misspelling the names of the beneficiaries or the testator on the will may lead to confusion and the will being declared void.
  • At any time, there can be only one will existing. Any previous wills are nullified with the newer ones.

Suggested Reading: How to Register a Will

How to Write a Will

Although the laws of India do not provide for a specific format for writing a will, a format is necessary for the will to be executed properly and with no disputes and confusion.

A few points that should be in your will

  • The will should be titled as LAST WILL AND TESTAMENT
  • It should clearly specify whose last will and testament the will is, i.e. who the testator is.
  • Declaration: Like any legal document, it can specify the address of the testator and other such relevant details for identification and verification like the aadhar number etc.
  • It will specify that the testator is of sound mind at the time of writing the will.
  • The testator has written the will of their own free will, i.e. they haven’t been coerced or forced.
  • Appointment of Executors: Executors are those who have the absolute powers to dispose of the assets or estate of the testator as per his or her wishes.
  • This clause should also provide for a situation where the executor may die before execution of the will.
  • The executor should be accorded with authority to take the help of experts like lawyers, doctors etc. if the need arises for the purpose of execution of the will.
  • Appointment of Beneficiary: Beneficiaries are those persons who get the property of the testator upon execution of the will.
  • This clause is of utmost importance as this specifies who gets what from the will.
  • This clause should clearly specify the worth and value of all the property being disposed of by the will. More accurate the information is, easier it is to dispose of the estate.

For example, the value of the house, total amount of jewelry to be disposed of, bank account numbers and their contents etc. should be mentioned clearly.

  • In case of multiple beneficiaries, this should specify how much each beneficiary should get.
  • The clause should also address the contingency where the beneficiary dies before the testator.
  • Miscellaneous: The testator may have wishes other than those mentioned above and they should be mentioned under separate clauses.
  • This may include the choice of the funeral ground, preferred method of last rites, whether the estate will finance the funeral etc.
  • In case the testator has minor children, he or she may want to appoint a guardian.
  • The testator should also mention any assets which are not a part of the will, if any.
  • Declaration and Attestation by the Witnesses
  • Like the testator, the witnesses also have to declare that they are of sound mind and have attained the age of majority (in India under the Majority Act).
  • The role of a witness is to make sure that the testator has made the will by his own free will and under no duress.

In Case of Suspicious Wills

In the case of Bharpur Singh & Ors. vs. Shamsher Singh, the Supreme Court said that  “Suspicious circumstances like the following may be found to be surrounded in the execution of the Will –

  1. The signature of the testator may be very shaky and doubtful or do not appear to be his usual signature.
  2. The condition of the testator’s mind may be very feeble and debilitated at the relevant time.
  3. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like the exclusion of or absence of adequate provisions for the natural heirs without any reason.
  4. The dispositions may not appear to be the result of the testator’s free will and mind.
  5. The propounder takes a prominent part in the execution of the Will. (vi) The testator used to sign blank papers.
  6. The Will did not see the light of the day for long. (viii) Incorrect recitals of essential facts.

The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had duly been proved or not.”

Section 68 of the Evidence Act states that any document, especially wills need to show a “proof of execution”. The witnesses, if alive, need to explicitly speak before the court regarding the validity of the will.

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