Making of a Will

AWill is a legal declaration of the intention of the testator, with respect to his property, which he wants effected after his death. Every person of sound mind, as long he is not a minor, can make a Will. A Will being a legal declaration, must be signed and attested, as required by law.

There must be some property which is being given to others after the death of the testator. It 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 and has no effect during the lifetime of the testator.

The testator can change his Will, at any time prior to his death, in any manner he deems fit. A Will can be written in any language and no technical words need to be used in a Will. However, the words used should be clear and unambiguous so that the intention of the testator is reflected in his Will. A Will can be made at any time in the life of a person. There is no restriction of law as to how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable.

The Will has to be executed by the testator, by signing or affixing his fingerprints on the Will. If a person is of unsound mind at the time of making a Will, such Will is not enforceable. A Will obtained by force, coercion or undue influence, is a void Will as it takes away the free agency of the person. A Will made under influence of intoxication or in such a state of body or mind, sufficient to take away free agency of a testator, is a void Will. If it is proved so, the Will becomes ineffective.

The Will needs to be attested by two or more witnesses, each of whom should have seen the testator signing the Will. The witnesses should sign in the presence of each other and in the presence of the testator. If a testator intends to make few changes in the Will, without changing the whole Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will. Both the will and the codicil can be altered or revoked at any time.

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. This will be released only to the testator himself or, after his death, to an authorised person who produces the death certificate. 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. A probate is a conclusive evidence of the genuineness of a 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. Thereafter, if no objection is received, the probate will be granted.

It is only after this that the Will comes into effect. The registration of a Will is not compulsory. The Will can be registered with a subregistrar. A nominal fee needs to be paid. The testator must be personally present at the registrar's office along with witnesses. The registration of a document provides evidence that the parties had appeared before the registering officer and he had attested the document after ascertaining their identity.

In India, the registration of Wills is not compulsory even if it relates to immoveable property. The non-registration of a Will does not lead to any inference against the genuineness of a Will. Registration of the Will by the testator himself evidences the genuineness of the Will. Whether registered or not, a Will must be proved as duly and validly executed, as required by the Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the registrar and therefore cannot be tampered with. No stamp duty is required to be paid for executing a Will or a codicil. A Will, therefore, need not be made on stamp paper.

Source:: Economic Times