What Is a Will: Your Guide to Last Will & Testaments

A Will is a document that reveals the intent of the testator in regards to the way to dispose of his property following his death. This article discusses the process of will drafting in India, its types, the laws that govern it and ways to challenge the validity of a Will. 

What is Will?

A Will is the legal declaration of an individual on a legal document concerning what assets he will distribute following his death. It is a single document that becomes effective upon the person's death, making it possible to make an informed choice about how you want your money, property, and assets to be distributed upon your death.

Wills are legal documents. However, there is no predetermined format for it since it may be written by hand or on any document, not just the paper stamp. A Will can be canceled or modified by the owner at any moment prior to the date of his death.

Who can make Wills?

According to Section 60 of the Indian Succession Act, 1925, the person who is making the will must be the following:

1. Above the age of 18 years old
2. Must have a sound mind

How do I register for a Will in India?

Let us discuss how to register a will in India

Step 1: First, you must ensure that the basic requirements of a will should be adhered to.

Step 2: It's recommended to speak with the family lawyer before writing the will. The testator may write the will by himself or through his lawyer.

Step 3. A will is signed by securing the testator's signature in front of two witnesses and their signatures.

Step 4: It will be advantageous that a will be authenticated and stamped correctly to ensure the proper execution.

Execution of a Will:

In order to begin the procedure of executing the will, a Probate is required in India and must be obtained by the courts. A probate will is a legal declaration that the Will is genuine. It is granted by filing a request in the court with the schedule of the property and annexing the copy of your will with the application. It is recommended to expressly pray to the court for the Probate to realize the executor's intent.

"A will needs to be drafted by taking into consideration the implications that shall follow the beneficiaries, and it is better to keep the beneficiaries informed of the same," declares Advocate Koonal Tanwar.

"A proper method of preserving the will can be done by ensuring that it is registered as it would give it a two-fold benefit, one of having a documentary presence and two of ensuring the legal validity over an unregistered Will," Advocate Koonal adds.

What should be in the will?

In a will, the following information is required to include:

1. Information about the testator: Name of the testator, his age, address, as well as other details that assist in identifying who is creating the will and at what time it is drawn.
2. Declaration - The testator must swear that they have a sound mind and is devoid of any influence while making the decision.
3. Information about the beneficiary: The specifics of who will benefit from this Will and to whom the assets will be divided must be provided, as well as their name, age, address, and relationship with the testator.
4. Executors of wills: It is essential to select an executor to ensure that the Will is executed in accordance with the instructions given by the deceased. 
5. Information about assets and property: It is essential to write down every detail of property and assets that a testator owns and also those that will be protected by the will. The testator can also write down any specific assets present.
6. Share division - The percentage each beneficiary owns on the property or the details of who gets the share to be stated in detail. If the asset is going to be gifted to a minor, an individual who is the custodian for the minor must also be included within the deed.
7. Specific Instructions - The testator should provide instructions regarding the execution of the Will. 
8. Witness - There must be a signature from the testator in front of at least two witnesses. The witnesses don't need to know the contents of the will. They must verify that the testator's signature was made before them.
9. Signatures - Testators need to confirm the date on the will after the previous statement.

What are the reasons to challenge the validity of a will?

A will can be invalidated on the basis of the following reasons:

1. Evidence of coercion, fraud or undue influence- There needs to be a preponderance of these elements in order to prove that the Will was not made with a clear motive and that the testator was not under pressure.
2. The presence of suspicious elements- There could be the presence of certain aspects in the Will that may give the impression that there was a violation of the Will.
3. In the absence of testamentary intent or capacity- This signifies that the Will could not express the person's intention to fulfill or execute the Will. In the absence of testamentary capacity, the testator may not be in a sound and sensible mind when making the Will.
4. Incorrect execution- If the testator's signature and the witnesses' signatures aren't present, it is a reason to challenge the validity of the Will.
5. Lack of knowledge- If the testator didn't have information about signing the Will, it could be considered grounds for contesting its validity. 

What's the procedure to contest the validity of a Will?

In the courts of law, according to the reasons outlined above, a will may be opposed by:

Step 1: File a lawsuit in a civil court that is reputable.

Step 2: Issue Vakalatnama: This gives the lawyer the power to take action on your behalf and to pay the court fees.

Step 3: The inception of the proceeding and filing an official written statement from the other party.

Step 4: Documents such as Legal Heir Certificates and other essential documents to the case must be submitted to the court.

What can you do to ensure that a Will be challenged following Probate?

Yes, it is possible to bring a contest to a will following probate based on the following reasons:

1. If there was a fraudulent grant of Probate fabricated by hiding facts or deceiving the judge
2. When probate has been granted based on an untrue allegation of facts
3. If the probate grant has been rendered ineffective because of specific changes in the situation

Are there any waivers of the right to contest a Will?

Yes, there could be an agreement to waive the right to contest the validity of a Will, but it must be accomplished by signing an agreement with all of the members with interest in the Will. It is, however, required that there should be an intention of renunciation of their right, a clear intention not to use it, and a complete understanding of the waiver of that right.

What is the procedure of Intestate succession in the absence of the Will?

Intestate succession in India is when someone dies without an estate plan. In India, inheritance is handled in two ways.

1. Personal inheritance laws have a religious resemblance.
2. Under the Indian Succession Act, 1925