WILL AND ITS ESSENTIALS
Definition
As per Section 2(h) of Indian Succession Act, 1925 will means the legal declaration of the
intention of a person with respect to his property, which he desires to take effect after his
death.
Indian Succession Act
A will made by a Hindu, Buddhist, Sikh, Jain, Christians, Jews and Parsis are governed by
the provisions of the Indian Succession Act, 1925.
However, Mohammedan are not governed by the Indian Succession Act, 1925 and can
dispose their property according to the Muslim Personal Law (Shariat)Application Act, 1937
is applicable.
Need for a Will
1. A well-drafted Will helps avoid family dispute regarding the property of the testator
and in case a dispute arises, the beneficiary of the estate has a formidable document in
his favour.
2. The law of inheritance does not consider the fact as to whether the deceased wished or
did not wish to let any of the family members inherit his property and in what
proportion whereas by way of a Will the testator can apportion the property as per his
wish
3. At times it has been seen that the deceased had properties both immoveable and
moveable which his inheritors may not know, however, a Will ensures that all kinds
of property are fairly distributed by the testator during his lifetime.
4. It is a very standard legal requirement now for transferring real estate, bank deposits,
stocks & shares, interest in the business. A well-drafted & registered Will ensures the
legal requirements are met.
5. The Will ensures that there are no bogus claims after the death of the testator.
Eligibility to make a Will
1. The testator should be of sound mind.
2. He should be free from any undue influence or coercion.
3. The making of the Will should be a voluntary act.
4. The testator should be fully aware of the contents of the Will.
Essentials of making a Will
1. The Will should have the details of the testator, for example name, address.
2. The need for making the Will should be spelt out along with the fact that the testator
is of a sound mind and is making the Will voluntarily and there is no coercion.
3. Use of unambiguous language in bequeathing of the estate.
4. The name of the executor (The person named by the testator to execute the testator’s
wishes) should be mentioned.
5. The schedule of properties should be appended.
6. The Will should be signed by the testator and attested by two witnesses.
Requirement for registration
Though a Will is not required to be registered and can be drawn on plain paper also, it is
desirable that the Will be registered. The registration can be done with the Registrar of
Assurances where the testator resides. The Will can be registered during the life of the
testator or by the executor or legatee after the death of the testator.
Enforcement of Will
A Will can be enforced by the executor. He is the safe-keeper of the rights of the
beneficiaries under the Will. The provision of the Indian Succession Act makes it mandatory
for enforcement of rights under the Will only by way of a Probate. Probate means certifying
of the Will by a court of competent jurisdiction.
Revocation of Will
A mere intention to revoke is not an effective revocation. The revocation of the Will should
be in writing and an express revocation clause would revoke all the prior Wills. If there is no
express clause to the effect then the former Will would become invalid to the extent of its
inconsistency with the latest Will.
Revocation can also be made in writing through declaring an intention to revoke and the
writing must be signed by the testator and attested by two witnesses. The deed of revocation
has to be executed in the same way as the Will itself.
