By Shantam Sharma and Ritvik Kashyap
Introduction
A Will, legally termed as a testament, is a fundamental document that outlines an individual’s wishes for the distribution of their assets after death. It is a tool that allows an individual to shape their legacy, ensuring that their hard-earned wealth and belongings are distributed according to their wishes. By creating a well-crafted Will, individuals can provide peace of mind to their loved ones, minimizing potential family disputes and ensuring a smooth transition of their assets. It is a proactive step that allows them to take control of their future, even beyond their lifetime.
In India, the laws related to Wills are mainly regulated by the Indian Succession Act, 1925 (“ISA, 1925”)[1], which lays down the uniform guidelines for their drafting, execution and legal validity. This ensures that a testator’s intentions are respected and executed in accordance with the law. Understanding the importance and intricacies of a Will can help individuals make informed decisions to secure their legacy and ensure an orderly transition of their estate, preventing potential disputes among heirs. This article delves into the types of Wills, important terms related to Will, who is competent to make a Will and legal complication & effects of a Will.
Types of Will
The ISA, 1925 classifies Wills into two main types:
A. Privileged Wills: As per Section 65 of the ISA, 1925[2], “Privileged Wills” refer to Wills made by specific individuals under exceptional circumstances. This category includes soldiers involved in expeditions or active combat, airmen engaged in similar operations, and mariners at sea, provided they are at least eighteen years old. Section 66 of the ISA, 1925[3] details the procedures and rules for their execution.
B. Unprivileged Wills: In contrast, wills that do not meet the criteria for Privileged Wills are categorized as “Unprivileged Wills”. These refer to the standard Wills made by individuals who are not in the military or maritime service. Section 63 of the ISA, 1925[4] details the procedures and rules for their execution.
Who is Competent to Make a Will?
According to Section 59 of the ISA, 1925[5], any person who is of sound mind and have reached the age of majority is legally permitted to bequeath their property through a Will. This provision includes four key clarifications:
- A married woman has the authority to bequeath any property that she could have legally transferred during her lifetime.
- Individuals who are deaf, mute, or blind can make a Will, provided they fully understand the nature and consequences of their actions.
- A person suffering from mental illness may execute a Will during intervals when they are of sound mind.
- Anyone unable to comprehend their actions due to illness, intoxication, or any other impairing factor is not permitted to create a Will.
Important Terms related to Will
- Testator
- Beneficiary
- Executor
- Attestation and Witnesses
- Testamentary Succession
The term “testator” refers to the person who creates a Will. “Testator” is used for a male, and “testatrix” is used for a female. The testator’s signature, or another form of identification if they are unable to sign due to a disability, is typically required at the end of the Will.
A beneficiary is a person who is designated to receive the testator’s property and assets as outlined in the Will. Multiple beneficiaries can be named, and they do not have to be related to the testator by blood.
An executor is the individual chosen by the testator to implement the provisions of their Will upon their death. The beneficiary of the Will may also serve as the executor.
Attestation is the process in which two or more individuals, as required by law, witness the testator signing their Will and also sign the document themselves. However, a witness to the Will cannot be a beneficiary.
Testamentary succession is the process by which a person inherits the property of a deceased individual according to the terms specified in their Will.
Legal Implications and Effect of a Will
The legal implication of a Will varies during the testator’s lifetime and after their death. While the testator is alive, the Will is considered “ambulatory,” meaning it can be changed or updated. Therefore, a Will remains revocable until the testator passes away. Once the testator dies, the Will becomes final, and its provisions take effect.
A Will serves as a posthumous instruction for the distribution of the testator’s estate. It is important to note that a Will does not involve a transfer of property between living individuals but only takes effect after the testator’s death. The primary characteristics of a Will are its intent to be effective after death and its revocability during the testator’s lifetime. Even if the testator transfers or disposes of part of the property covered by the Will while alive, it does not revoke the Will or affect the remaining assets to be inherited upon the testator’s death.
Conclusion
In conclusion, a Will serves as a vital legal instrument that empowers individuals to determine the distribution of their assets after their death, ensuring their wishes are honored and preventing potential disputes among heirs. The evolution of Wills in India, from the religious customs of ancient times to the modern statutory framework, reflects the growing recognition of individual property rights and the importance of orderly succession.
Creating a Will is not just a legal formality but a proactive measure that provides clarity and certainty to loved ones. It enables individuals to maintain control over their assets even beyond their lifetime, offering peace of mind knowing that their estate will be distributed according to their wishes. With clear provisions regarding the execution, attestation, and succession, a Will ensures that the transition of assets is smooth and in accordance with the testator’s intent. Thus, making a Will is an essential step for anyone seeking to secure their legacy and protect the interests of their family.
[1] Available at: https://www.indiacode.nic.in/bitstream/123456789/2385/1/a1925-39.pdf
[3] Mode of making, and rules for executing, privileged wills, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879&orderno=66&orgactid=AC_CEN_3_20_00058_192539_1523349789879