Nevin Clinton, Flywork.io Team, Flywork.io.
A will is essentially a legal declaration stating how one’s property must be disposed of after his death. If a will has been drafted by a person before his death, his property will be governed by testamentary succession i.e. according to what he has stated in the will. If there is no will, intestate succession will come into force wherein the division will be done according to existing laws.
Definition of will
Section 2(h) of the Indian Succession Act, 1925 defines a will or testament as a ‘legal declaration of the intention of a person when he wants to distribute his estate as a testator to the people who would be inheriting the estate after his death.
Need for a will
A will is important as it helps make the process of division of property after one’s death extremely simple. A person can decide who receives his property through a will, the lack of which could create needless confusion and legal complications. A will can also contain details on who should be guardians for minor children, if any, as well as successors for businesses. So if a will is drafted in an effective manner, it would lead to seamless disposition of property. This is exactly why a will must be drafted with the help of legal personnel.
Essentials of a will
- Intention: First and foremost, the intention of the person making the will must be made clear. The said intention must be to take effect after his death.
- Capacity: Only a person who has attained majority and is of sound mind can make a will. A will can also be made by a person who is usually of unsound mind if it is done so during a lucid interval.
- Manner of disposition of property: A will must clearly mention how the property concerned is to be divided. There must be no ambiguity and just naming successors will not be enough.
- Alteration of will during lifetime: A will can be altered during the lifetime of a person so it is the final draft of the altered will that will be valid.
- Other necessary details: A will must have complete details on the testator, property, an executor will, shares, signatures and so much more which are discussed below.
How to draft a will?
The following are the details that must be ensured to be given in a will while drafting.
Details on testator: Complete details on the person making the will must be provided including name, age, address, and other documents as proof. The date of making the will must also be specified. The testator must also declare that is of sound mind and that he was not coerced into making the will. If a will has certain statements that lead to doubts that the testator might have been coerced, the executor of the will must prove or satisfy the conscience of the court that it was not the case.
Details on beneficiaries: Apart from details on the testator, complete clarity must be given on who the beneficiaries are. Their name, age, address and the like must be mentioned as well.
Appointment of the executor of a will: It is essential that an executor must be appointed for a will who can ensure that everything mentioned is carried out smoothly. Details on the executor must also be provided in the will.
Details on property: Since the very purpose of a will is to govern the disposition of property after one’s death, details of all the assets and properties of the testator must be mentioned with solid proof. The shares that each beneficiary will get from the property must also be given. If a child gets a share, a custodian must be appointed. Any particular direction on how to share a particular piece of property can also be given.
Signatures: A will must be signed by the testator in the presence of 2 witnesses. It is not compulsory that the witnesses must be aware of the details of the will. In fact, it is advisable if they are not aware.
Revocation of will
It is noteworthy here that a will can be revoked during the lifetime of the testator. This can be done by drafting a document stating the intention to revoke a will. Alternatively, destroying a will and all copies of it would also mean that it would stand revoked.