The Indian Succession Act, 1925 governs Wills and other related matters in India. As per Section 2 (h) of the said Act, "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
In simple words, "Will" is a formal declaration or legal instrument that an individual creates during their lifetime to direct the disposition of their property after their death in the manner that they desire. The heirs and survivors of the deceased inherit the property in the manner that the deceased desired by using the will as a legal document. In India, wills can help complex family structures to distribute property peacefully and without the need for litigation.
ESSENTIALS OF A VALID WILL
Among other things, there are three basic elements that are essentially required for a will to be valid. They are-
There must be a legal declaration.
Such declaration must be made by the testator with respect to his property.
The declaration is to take effect after the death of the testator.
Let us understand all these three essential elements in brief now. "Legal declaration" refers to the requirement that the document posing as a will be legitimate, meaning it must be executed and attested in accordance with Section 63 of the Indian Succession Act, 1925, and be signed by an individual who is competent to do so. Stated differently, by an individual who is of sound mind and is not a minor.
Additionally, the declaration must pertain to the property of the testator that he wishes to dispose of. It is not a will if the declaration only names a manager or specifies a successor without making any mention of how the property will be disposed of. There is no definition for the term "property" in any legislation. Therefore, one must interpret the phrase in its broadest sense. In general, everything to which the testator has obtained title can be included under the phrase "his property".
The declaration about the disposition of the testator's property must be intended to come into effect following his passing. It is not a will if the declaration is to instantly carry out his intentions. A will's fundamental requirement is that it be revocable while the testator is still alive.
It may be stated that each of the three requirements listed above must be met for a document to be considered a valid will.
KINDS OF WILLS
The Indian Succession Act, 1925 deals with two kinds of wills. They are Privileged will and Unprivileged will.
Chapter IV of Part VI of the Indian Succession Act, 1925 exclusively deals with Privileged wills and their execution. As per Section 65 of the said Act, "Any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in Section 66. Such wills are called privileged wills.". Such Privileged wills may either be made in writing or may be made by word of mouth.
On the other hand, Chapter III of Part VI of the above mentioned Act solely deals with Unprivileged wills. It does not define Unprivileged wills in express words but disguisedly mentions that all other wills apart from Privileged wills would be Unprivileged wills. Section 63 states that "Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:-". The use of these words stresses the idea that all wills, other than Privileged wills, fall in the category of Unprivileged wills.
COMPETENCY TO MAKE A WILL
Section 59 which forms a part of Chapter II of Part VI of the Indian Succession Act, 1925 states that every person who is a major, i.e. 18 years and above, and has a sound mind may dispose of his property by will. It further states that a married woman may dispose of any property by will that she could alienate by her own act during her life.
It also clarifies that persons who are deaf or dumb or blind are not incapacitated to make a will if they are able to know what they do by making a will. Coming on to persons who are ordinarily insane, it asserts that they may make a will during intervals in which they are of sound mind. Also, the provision stresses upon the fact that no person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
It is evident from the above provision that the individual drafting the will and, consequently, allocating the assets, must be of sound mind. It states that an individual must possess "Sound Testamentary Capacity" in legalistic terms. Three requirements must be met at the same time in order to meet the "Sound Testamentary Capacity" requirements. The testator must comprehend three things:
(i) that he or she is transferring ownership of their property to one or more people they hold dear;
(ii) that they must comprehend and remember the extent of their property; and
(iii) that they must also comprehend the nature and scope of claims made against them by those they are including in their will and those they are excluding from it.
It is also pertinent to mention here that a will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
IMPORTANCE OF A VALID WILL
It is impossible to overstate how important it is to write a proper will. In addition to making estate planning more effective and efficient, a will helps the family members of the deceased to avoid needless arguments and legal disputes. Additionally, it aids in protecting the rights of the lawful heirs against any surviving family members or claimants who might want to assert their own claim to the deceased's estate.
The ability to distinguish between the nominee and the beneficiary is the primary function of a will. A nominee is a person who possesses property before its ultimate distribution under the terms of the will, whereas the beneficiary is the person who really obtains the property. With the aid of a will, the testator can choose a candidate for the distribution of assets in accordance with their wishes.
Having a will in place to help arrange for finances and guardianship of dependents or minor children is one of its main advantages. In the event of an unfortunate parent's death, the courts have the exclusive authority to distribute assets and designate guardians in the absence of a will. Nonetheless, parents or single parents might name guardians and set aside money for their kids' future and education through a will.
PROBLEMS FACED IN THE ABSENCE OF A WILL
Since the significance of having a will cannot be overstated, India faces the following problems when there are no wills:
Lack of a legitimate will exposes the deceased's family to unwarranted legal risk if there are disagreements over how to divide up the family's assets.
The likelihood of distant relatives or creditors taking advantage of the deceased's possessions is high.
Family members are frequently unaware of the deceased's whole asset portfolio, which prevents them from using the assets after his death.
If the deceased person has a social media presence and no management appointment has been made, there is a possibility of identity theft.
CONCLUSION
It is simpler for a person to split their valuables and property and to organize their finances and estate appropriately when they have a will. It has proven to be a crucial tool for preventing family conflicts and ensuring that the testator's desires are carried out after his death.
The act of drafting a will is easy and has numerous advantages for the individual. The testator's legacy is protected by a will. To prevent future problems, one must therefore carefully draft their will, taking note of all the applicable laws and important components.
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