Introduction
According to Section 2(h) of the Indian Succession Act of 1925, a will is a person’s legally binding declaration of their intentions concerning their property that they want to be carried out after their passing. A “Will” is a legal declaration of a man’s desire, which he wills to be carried out after his death, or an instrument by which a person makes a disposition of his property to take effect after his death, according to Corpus Juris Secundum.
The terms of the Indian Succession Act, 1925 apply to a Hindu, Buddhist, Sikh, or Jain’s will. Mohammedans, however, are exempt from the 1925 Indian Succession Act and are free to divide their property under Muslim Law.
Essential ingredients of Will
A will is not needed to follow any particular format or use certain words. The intention of the testator to make dispositions of his or her property that take effect after his death must be disclosed in the instrument, nevertheless. It will thus consist of the following:
- Designating an executor to manage the estate
- Assets or properties that belong to the testator
- Inheritance ratio for any property or assets that will go to a charitable trust or other heirs
- the testator’s obligation to provide for the needs of minors
- Prior to their legal right to inherit, minors share the care.
- The clause relating to the distribution of any unallocated residual assets
What is a Legal Will?
To be legitimate, a will must meet certain standards. If it is not legally legitimate, it is the same as dying without a will. The prerequisites are as follows:
- Legal age: A will can only be written by someone who is of legal age. The majority of states deem 18 to be the legal age.
- Testamentary capacity: The testator must be of sound mind, meaning that he or she must comprehend why he or she is drafting a will and how it will be carried out.
- Intent: When a will is signed, a person has the purpose to make a revocable property disposition at that time if they plan to do so in the case of their passing.
- Voluntary: A will cannot be compelled to be created; it must be voluntary.
- Proper disposal of property: The right distribution of property among family and friends must occur.
- Signed, Dated, and Witnessed: A will has to be signed, dated, and witnessed for it to be considered legitimate. According to local rules, there will be a certain number of witnesses.
Effects of not having a will or testament
Intestate succession occurs when a person passes away without leaving a legally binding will. When someone passes away intestate, their possessions and assets are divided under personal laws.
When a Hindu dies intestate, that is, without creating a will, the Hindu Succession Act, 1956, specifies how assets shall be distributed. Muslims in India are governed under Mohammedan Law. A Muslim’s estate should be distributed by following Mohammedan law. Christians and Parsis who pass away without leaving a Will have their possessions allocated as per the Indian Succession Act, 1925.
Formation of a Will
There are two categories of wills recognized by the Indian Succession Act: unprivileged and privileged wills. Armed services personnel who are on an expedition or engaged in real combat are permitted to make privileged wills, which may also be done orally. A modification of the formalities has been planned for them in light of the inherent risks and potential for untimely death, as well as the lack of resources and time to intentionally draught written wills.
Wills that can be made by anybody outside those who can make privileged wills are known as unprivileged wills. It must be in writing for a privileged will to be carried out. Except for the language needing to be understandable and clear, the legislation does not specify a certain format. The will must be signed by the testator, bear his or her mark, or be notarized under his or her instruction by another person. It is necessary to have two or more witnesses attest that the testator marked the will with their consent.
A will does not need to be on stamp paper or registered with the government, according to Section 18 of the Registration Act. The burden of establishing an oral will is quite high, thus any attempts by a person to propose a will that was made orally must be strictly proven on very solid evidence.
Conclusion
The creation of a will should be the first financial decision made because it is so crucial. It should be expressed in writing in a way that makes the testator’s purpose clear. Writing a will shouldn’t be avoided due to concern over its complexity.
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