What is a will : an overview

According to Section 2(h) of the Indian Succession Act (1925), a ‘will’ is a legal declaration of a
testator’s intent regarding the transfer of ownership of their property upon their demise. So, a will is
essentially any legal document stating the legal means by which a person desires to dispose of their
assets and wealth in the event of their death. It is also called a testament. This document usually
contains all the testator’s dispositions in writing. However, there are oral wills as well. They are
referred to as nuncupative wills and are legal only in certain jurisdictions. A will comes into effect
only after the demise of the testator. They are the most common instruments for succession and
estate planning in India. A person is said to have died intestate if they did not leave any instructions
regarding the disposal of their property and have no will at the time of their demise. This usually
happens in cases involving the death of young people. In such situations, the property of the
deceased is distributed as per the law.
Essential elements of a will
For a will to be valid, there are certain essential characteristics they should possess. These include
the following:
Legal declaration
All the documents related to the will ought to be in conformity with the law. Furthermore, the
executor of the will should be legally competent to execute it.
Intent
The intent of a will should be expressly declared as the transfer of ownership of the testator’s
property. Without this, the will is not binding or executable.
Property disposition
The will should be made to facilitate the transfer of the testator’s wealth and assets to the people of
his choice.
Effect after death
A will is executable only after the death of the testator. Till then, the testator exercises complete
ownership over the property and may amend the will at any time as per their convenience. A will is
executed after the testator’s demise by their executor after an application to obtain a letter of
administration is filed before the court.
Types of wills
Privileged wills
Section 65 of the Indian Succession Act (1925) deals with privileged wills. They are essentially
written or oral wills made by soldiers, airmen, or mariners who have completed eighteen years of
age that mention the manner in which they desire to dispose of their property.
The execution of these wills is governed by certain rules which are mentioned in Section 66 of the
Indian Succession Act (1925). This Section, inter alia provides for the validity of unfinished wills
and even wills which the soldier, airman, or mariner instructed to prepare but died before the
execution. The privileges enacted in these provisions are to compensate for the predicaments faced
by soldiers, airmen, and mariners during the tenure of their service.
Unprivileged wills
Unprivileged wills refer to those wills that are created by any person who is not an airman
employed in an expedition, a mariner at sea, or a soldier who is engaged in actual warfare. Section
63 of the Indian Succession Act (1925) deals with the execution of unprivileged wills. Unprivileged
wills are valid only if the testator signs or makes another person sign the will in their presence with
the intention to give effect to its writing and there are at least two witnesses present to attest the will
who observed it while it was being created either by the testator or on their instruction.
Contingent wills
Contingent wills refer to those wills that can be executed depending on the happening of a future
event or upon the satisfaction of certain conditions. Owing to this, they are also called conditional
wills. These wills are invalid in situations wherein the contingency fails to occur or the conditions
are not fulfilled. The wills involving conditions that are opposed to law or invalid in nature cannot
be executed either.
Joint wills
Joint wills refer to testamentary documents wherein two or more people agree to make a conjoint
will. They cannot be revoked by one of the testators without the consent of the other testators if they
are alive. Such wills are usually made by married people who intend to leave their property to their
spouse upon their demise. Joint wills are not enforceable during the lifetime of any of the testators if
they were meant to take effect only after the death of all the testators.
Mutual wills
Mutual wills refer to wills wherein two people consent to certain terms and conditions that are
mutually beneficial to both parties. In situations involving these wills which have reciprocal
benefits, the testator gives the other person the status of their legatee. These wills are binding on the
surviving parties even after the death of any party. Mutual wills are usually created by married
couples with children from previous marriages so as to ensure that the children get the property they
are entitled to and it is not inherited by any potential future spouses instead.
Concurrent wills
Concurrent wills refer to co-existing wills written by a testator which contain instructions regarding
their property disposal. Instead of having a single will, the testator chooses to make different wills
as it reduces the complications associated with the disposal of different kinds of property, for
instance, movable property, immovable property or property they own in different geographical
locations. A concurrent will makes the process of property transfer more convenient for the
testator.
Duplicate wills
Duplicate wills refer to wills that have two copies but are considered to be a single will. According
to Section 63 of the Indian Succession Act (1925), in order to make a duplicate will, a testator has
to make a copy of their original will, sign it, and get it attested. Duplicate wills are made as a safe
backup to rely on in the event that something happens to the original will. The testator keeps a copy
with them and gives the other to a trustworthy person like their executor, attorney, or in certain
cases keeps it in a bank locker. A duplicate will is authentic and executable only when the original
will is not on record. In circumstances wherein the testator willfully destroys the original, the
duplicate will is revoked automatically.
Holograph wills
Holograph wills refer to wills written by the testators themselves. Provided there are no suspicious
circumstances, these wills have their own merit and can be executed with ease owing to the fact that
the testator has handwritten the entire will on their own.
Sham wills
Wills that are not created for the sole purpose of disposing of a testator’s property but have another
ulterior motive are referred to as sham wills. The ulterior purpose these wills aim to fulfill is usually
unethical. For instance, immoral acts like deceiving someone or acquiring property that the claimant
is not entitled to constitute sham wills. Since a will is invalid if the testator does not consent to it,
these wills are invalid. Section 61 of the Indian Succession Act (1925) states that all wills that are
made through fraudulent means or under coercion that deprive the testator of their free-agency will
be considered invalid.
Making of a will
In India, anyone over the age of 21 years is eligible to make a will. That said, there are certain
prerequisites one should consider while doing so. Mentioned below are a few points to be factored
in the making of a will.
Form
The will can be made on either plain paper or stamp paper. Though the latter is preferred, it is not a
necessity as per the law. All testators are advised to write their own wills as opposed to getting
someone else to write it for them or printing it as this facilitates verification in case any question
regarding the validity of the will arises.
Necessity
Though it is considered a taboo in India, people ought to make wills at the earliest to avoid any
future altercations between family members regarding property distribution. In situations wherein a
person passes away without a will, then their property is distributed as per the laws of inheritance
and succession which differ based on the religion the person followed. In the case of Hindus,
the Hindu Succession (Amendment) Act (2005), is followed, Christians follow the provisions under
the Indian Succession Act (1925), and the property of Muslims is distributed as per the Holy
Quran.
Constituents of a will
Though there is no official prescribed format of a will, there are several essential constituents that
are required for a will to be valid and legally enforceable. Mentioned below are certain parts of a
will that can be used as a reference format.
Declaration
At the very beginning of the will, the testator is to declare that they are making this will of their
own accord and are in their complete senses while doing so. The testator has to clearly state that
they are under no pressure or coercion from any third party. The testator should also clearly
mention their name, address, date of birth, and the like to prove that they are not under any
influence at the time of making this declaration.
Details of property and documents
The testator should list out all their assets alongside the current market value of those assets. Every
detail regarding their assets and any other items they own should be mentioned. For instance, the
current location of the assets, documents stating ownership of the assets, and the like. Assets
include valuables like the testator’s property, house, bank accounts, mutual funds, and other
investments. The future location of the will, the procedure to execute the will, details of the
executor, and the like should also be mentioned in the will and communicated to both the family
members of the testator and the executor.
Details of ownership
The testator has to mention who the future owner of their assets will be with clarity. All their assets
should be stated alongside the name of the future owner and the proportion they are going to own.
This will avoid any confusion and future altercations between the beneficiaries. In case the testator
wishes to leave some property for a beneficiary who happens to be a minor, then they have to
appoint a trustworthy custodian of the assets till the beneficiary attains the age of majority.
Signing the will
After the testator has completed writing the will, they must sign it in the presence of a minimum of
two witnesses who will also have to sign thereafter declaring their presence at the time of the
testator’s signature. The witnesses will have to sign every single page of the will. The bottom of the
will should indicate the date and place in which it was made. After all of the formalities are
completed and the will is made, it should be placed in a sealed envelope containing the testator’s
signature and date of sealing.
Registration of a will
According to Section 18 of the Registration Act (1908), the registration of a will is not compulsory.
Though it is highly recommended to register a will in order to ensure its safety, unregistered wills
are valid and executable too. In the case of Narain Singh v. Kamta Devi (1953), it was held that a
will cannot be deemed ingenuine simply on account of non-registration.
Revocation of a will
All wills are ambulatory. This means that a testator may revoke or change it at any time before their
demise, provided they are competent to do so. A will is said to be revoked when the testator takes
some action to indicate that they do not want the provisions of the will to be legally binding
anymore and their decision is lawful. A revocation is lawful only when the intention of the testator
is clear. It may be either express intent or implied but the act of revocation must be consistent with
the intent.
A document called codicil is used by testators to revoke a will. It can be used to partly or wholly
amend a will too. A testator may also revoke their initial will by making a new one as a new will
indicates a testator’s intent to revoke their earlier will, as observed in Kuppuswami Raja and Anr. v.
Perumal Raja and Ors. (1963). Additionally, any statement made by the testator around the time
they destroy a will, for instance by burning or tearing it will be considered as a demonstration of
their intent to revoke the will. These are situations wherein a will is revoked intentionally. There are
certain instances wherein a will is revoked unintentionally. For instance, in the case of a divorce, if
the testator does not revise their will, any disposition to their former spouse is revoked
automatically.
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Sample format of a will
Below is an illustration of a template of a will:
I, ______________, son of Shri _______________, aged __ years, resident of
_____________________________, do hereby revoke all my former Wills, Codicils and
Testamentary dispositions made by me. I declare this to be my last Will and Testament.
I maintain good health, and possess a sound mind. This Will is made by me of my own independent
decision and free volition. Have not be influenced, cajoled or coerced in any manner whatsoever.
I hereby appoint my ________________, as the sole Executor of this WILL.
The name of my wife is _________________. We have two children namely, (1)
__________________ (2) ________________, I own following immovable and movable assets.
1. One Flat No.___ in _______________________.
2. Jewellery, ornaments, cash, National Saving Certificate, Public Provident Fund, shares in
various companies, cash in hand and also with certain banks.
All the assets owned by me are self-acquired properties. No one else has any right, title, interest,
claim or demand whatsoever on these assets or properties. I have full right, absolute power and
complete authority on these assets, or in any other property which may be substituted in their place
or places which may be Acquired or received by me hereafter.
I hereby give, devise and bequeath all my properties, whether movable or immovable, whatsoever
and wheresoever to my wife, _____________________, absolutely forever.
IN WITNESS WHEREOF I have hereunto set my hands on this ____ day of ____, 20__ at
____________.
TESTATRIX
SIGNED by the above named Testatrix as his last WILL and Testament in our presence, who
appear to have perfectly understood & approved the contents in the presence of both of us presents,
at the same time who in his presence and in the presence of each other have hereunto subscribed our
names as Witnesses.
WITNESSES :
1.
2.
INTRO
Will deed is a legal document conferring ownership of personal property and assets to the heirs of
the testator (the one who makes the will) upon his or her demise. It comes with guidelines on the
distribution and disposal of property and assets, ensuring that there are no future legal disputes
amongst the heirs. However, it may be changed or revoked by the testator anytime.
What are the key features of Will deed?
Here are some key points about will deeds:
 Legal instrument for succession and estate planning
 The will is legally effective only upon the testator’s death
 Will come under the Indian Succession Act, 1925
 The Section 2 (h) defines them as the legal declaration of the intention of a testator with
respect to his property which he desire to be carried into effect after his death
 The conditions for a legally valid will include the signatures of witnesses, clear intentions
for inheritance and the capability of the testator to execute the same
 The testator may change or revoke the will in his or her lifetime
 It can be revoked with a fresh will, a written declaration, or the destruction of the will
 Upon the testator’s demise, the enforcement of the will takes place via a court application
for obtaining a letter of administration or probate. This is the certificate given by the court to
the executor. Court fees are also payable for the probate petition.
What are the benefits of Will deed?
There are numerous advantages, including:
 Limits possibilities of future family disputes
 Distributes assets as per the wish of the testator
 Combats business interruptions, encroachment and other possible hurdles in the future
What are the court fees?
The fees are calculated through the ad valorem system, which implies a specific percentage of the
value of the estate has to be probated. Getting a probate is compulsory in cities such as Kolkata,
Mumbai and Chennai. The court fees are Rs 75,000 and Rs 25,000 in Mumbai and Chennai
respectively. In Kolkata, they are approximately 5.5 percent of the property value.
Format of Will deed
 Personal Details such as name, address, etc.
 Date of preparing the will of "Declaration of Date"
  Validation of Free Will by mentioning that you are not under any influence and you are not
forced to prepare this Will by any person.
 Provide Executor’s Details
 Details of Assets & Beneficiaries
 Sign the Will after mentioning the above details
 Signature of Witnesses: Get the Will attested by minimum two witnesses.
Will deeds are an effective way to legally safeguard and establish inheritances while combating the
chances of future disputes. However, appropriate legal advice must be sought when a will is
executed.
Clauses in Will deed
A testator should include the following things in a Will:
 The intention of the testator
 Manner of disposal of the property
 Revocation or alteration clauses that can be implemented in the lifetime of the testator