A Will is a legal document that sets forth the wishes of the person making it (the testator) regarding the distribution of property and the care of minor children, if any, after their death, and is the centerpiece of most estate plans. A will is important for succession planning for individuals to ensure that after his/her demise, there are no disputes amongst legal heirs and everything to the best possible extent remains certain in all respect. The Will names an executor who is to be entrusted with the duty to carry out the wishes of the deceased. It also provides the executor(s) with instructions on how the estate should be distributed.
For the purposes of valid and correct will the testator must be of "sound mind" to make a Will, which means that:
· The testator understands he or she is making a Will and knows what a Will is;
· The testator understands his or her relationship to those mentioned in the Will; and
· The testator understands what types of property he or she owns, how much of that property he or she owns, and how he or she intends to distribute that property.
A Will should be reviewed from time to time to ensure that it still meets the needs of the testator and that the property will be distributed according to his or her wishes. It is especially important to review a Will on the following events:
· The testator gets married or divorced (a change in marital status may void the previous Will);
· There is a significant change in the amount of money and property the testator owns;
· The executor or a significant beneficiary in the Will dies;
· There is a birth or adoption of a child in the testator's family;
· The testator changes his or her mind about the provisions in his or her Will.
How to use this document
In order to be valid, a Will does not need to adhere to any specific form, or feature certain language. However, the document must disclose the intention of the testator in making dispositions of his or her property to come into effect at death.
A typical Will usually provides that all debts of the estate including taxes should be paid first (although they are payable anyway). It names an Executor, who will be responsible of administering the estate, and then set out the powers of the Executor(s) in administering the estate. Will then sets out any specific assets or properties or money that are to be distributed. Whatever is left after all of the specific gifts have been given and all debts have been paid is called the residue of the estate. A Will should contain a residue clause specifying how the residue should be distributed. For a Will to be formally valid it must be signed by the testator and two witnesses at the same time in the presence of each other.
Applicable laws
In India, the Indian Succession Act, 1925, governs the law of succession. However, for some religions, personal laws also come into play in respect of the assets which can be given away through a will.
Further, while it is not necessary to register a will, if it is registered with the Sub-registrar under the Indian Registration Act,1908, it would prevent the same from being challenged after the death
of the testator.
Grounds of challenging of will:
There are different grounds of challenge of the will, mostly by the family members of the deceased, especially by the persons who did not get any benefit from the will. Usually, the allegation is of influence, manipulation, and fabrication of the will.
Further, a ground commonly used is about the witnesses whether they signed in the presence of each other or not. This is entirely the subject of questions asked while cross-examination before the courts of law. Therefore witnesses are the most important persons in the will who play the major role in establishing the will. It is also advisable that witnesses in the will are the persons who remain aware of the contents of the will.
Sharad Nagpal & Associates offer exemplary legal support and top-notch advice to their clients regarding all property law related matters. Our team of experienced attorneys is dedicated to providing the highest level of attention to detail and outstanding client service.
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