Introduction:
A will is a crucial document in the realm of inheritance. Despite its importance, many individuals overlook the necessity of creating a will, often believing that matters will resolve themselves. This blog post aims to shed light on the significance of wills and codicils, their components, and the legal intricacies involved.
What is a Will?
A will is a legal declaration of a person’s intentions regarding the distribution of their property after their death. It ensures that the estate is distributed according to the wishes of the deceased, rather than being left in a state of uncertainty.
Consequences of Dying Intestate
Estate in Flux:
Without a will, the estate remains unsettled.
Risk of Fraudulent Documents:
There is a danger of fraudulent documents being produced, leading to lengthy court battles.
Loss of Control:
The law takes over the distribution of the estate, which may not align with the deceased’s wishes.
When preparing a will, it’s essential to consider personal laws, especially in a diverse country like India. Personal laws govern marriage and succession, and they must be taken into account to ensure the will is legally valid.
LEGAL TERM
- Testator: The person making the will.
- Executor: The legal representative responsible for executing the will.
- Beneficiary: The person who inherits property under the will.
- Probate: A certified copy of the will under the seal of a competent court.
Characteristics of a Will
Legal Declaration
A will must be legal and executed by a person competent to make it. This includes being of sound mind, not a minor, and free from fraud or coercion.
Disposition of Property
The will must clearly state how the property is to be distributed. Ambiguity can lead to disputes and may invalidate the will.
Death of the Testator
A will comes into effect only after the death of the testator. This ensures that the property is distributed according to the testator’s wishes.
What is a Codicil?
A codicil is an instrument made in relation to a will, explaining, altering, or adding to its dispositions. It is considered part of the will and can be used to make changes without creating a new will.
Executor and Their Duties
The executor is the legal representative of the deceased and is responsible for distributing the estate according to the will. They may or may not be a beneficiary under the will.
Essential Characteristics of a Will
Legal Competency
The testator must be legally competent to make a will. This includes being of sound mind and free from undue influence.
Disposition of Property
The will must clearly state how the property is to be distributed. Ambiguity can lead to disputes and may invalidate the will.
Revocability
A will is revocable during the testator’s lifetime. This means the testator can change or cancel the will as long as they are competent to do so.
Registration of a Will
While registration of a will is not compulsory, it provides evidence of the genuineness of the will. Registered wills are kept safe and cannot be tampered with.
Procedure for Registration
The testator must be present at the registrar’s office along with witnesses. A registration fee is paid as per the law of the state.
Revocation and Amendment of a Will
A will can be revoked or altered by the testator at any time. This can be done by executing a new will, destroying the old will, or making a codicil.
Probate and Letters of Administration
Probate is mandatory for wills executed by Hindus, Christians, or Parsis in Mumbai, Calcutta, or Chennai. It is conclusive evidence of the validity of the will.
When drafting a will, it’s essential to detail both movable and immovable properties. Family members should be aware of the location of important documents, including insurance policies.
Living Will
A living will allows a person to express their wishes regarding medical treatment in case they become incapacitated. The Supreme Court of India recognized this in the ‘Common Cause’ judgment of March 2018.
Conclusion
Creating a will is a vital step in ensuring that your estate is distributed according to your wishes. By understanding the legal aspects and preparing a comprehensive will, you can avoid potential disputes and ensure a smooth transition of your assets to your heirs.
