- A will is a legal declaration of the intention by one person (known as a Testator) to bequeath his property/assets after his demise.
- Will is the medium that depicts the manner in which the property will devolve upon a person (known as Beneficiary/Legatee) after the demise of the Testator.
- Will can only be drawn for a self-owned property, not for ancestral.
- An executor is a person who is responsible for executing the directions of the deceased as specified in the will.
- Registration of will is not mandatory in India (this has been discussed in brief in this article)
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What are the essential conditions for qualifying as a Testator?
- A testator should be a person of sound mind & of the age of majority. A Testator is a different person but an executor of a Will can be a beneficiary.
- The Indian Succession Act, 1925 prohibits a person from making a will in case of intoxication or illness which directly impairs his ability to understand the consequences of the act.
What should be the components of a Will?
- Testator- One of the main parties to a Will is the testator. The general details of the testator which will help in identifying the testator as a person authorised to bequeath the property should be included. For instance- Name, Address, Age, & any identity proof, etc.
- Declaration of the Testator- As it is provided in the Indian Succession Act, 1925 the testator should be capable of entering into the transaction & of the age of majority. Therefore, in compliance with that law, there should be a declaratory statement in the Will by the testator that the Will is being made out of his/her free will & the testator is under no coercion or undue influence for executing this deed. When the executor & beneficiary are the same person there may arise a dispute related to the individuality of the testator because an executor of a Will can be a beneficiary.
- Beneficiary- The second important party who is going to reap the benefits of the will is the Beneficiary. Therefore, the details of the beneficiary/s such as Name, Address, Age, & identity proof have to be provided in the will. An executor of Will can be a beneficiary. Beneficiary & executor can be the same person as in case of partners or parents.
- Executor – The executor plays an important role because he/she is the person responsible for executing the will after the demise of the testator as per their directions. So, the details of the executor should be incorporated in the will. For instance- Name, Age, & the relationship he/she shares with the testator. An executor of Will can also act as a beneficiary
- Details of the Assets- The will should specify the details of the assets to avoid any ambiguity in the future. The will should clearly specify the type of assets whether it is tangible, intangible, fixed, or liquid assets, in what proportion who is going to receive it, if it is tangible fixed assets then the location where it is situated & so on.
- Witness- The will is required to be attested by at least 2 witnesses which means that the testator should sign the will in the presence of the witnesses. Then both the witnesses signify that they have seen the testator sign the document in their presence.
- Signature- The signature of the testator is ought to be imprinted on the will with the date on which it was made by him/her. Without the signature of the testator, the will cannot be executed because then there will be a high chance of it being frivolous.
Therefore, drafting a will is a very crucial step because if you lack in one aspect there might be a possibility of lacking the other. It could be in the form of disputes relating to a non/ambiguous description of the property, not properly addressing the details of the parties, etc. So, it is advised to keep the executors & beneficiaries different. However, an executor of Will can be a beneficiary. You may contact our experts to draft a will for you!
Whether Will Registration is mandatory in India?
No, the will registration of a will is not mandatory as per Indian Law. But the registered wills always carry more legal sanity as compared to the unregistered. So, to keep the disputes at bay it is highly suggested to get the Wills registered otherwise the beneficiaries have to indulge in legal proceedings. Also, it is advised to have different persons as an executor & beneficiary although an executor of Will can be a beneficiary. You may register the will online with the help of our legal experts.
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Can an executor of a will be a beneficiary?
The answer is probably yes to it. An executor of a will can be a beneficiary if in case both persons are the same or, in near relations it can be seen. For instance, where the wife is the beneficiary & at the same time executor of the property of his deceased husband.
This practice is common in family arrangements because it will save the cost of hiring a professional, particularly a lawyer or any third-party for executing the will. It is a reliable method but as every coin has two sides there are high chances of cheating & manipulation in the Will when the executor of the Will is also the beneficiary.
What is the actual share being provided in the will by the deceased that might not be given in line with the same proportion to the beneficiary. Although, an executor of the Will can be a beneficiary. But the general practice & course of appointing a separate executor from the beneficiary should be followed.
Will can be of different types. It may range from privileged, unprivileged, conditional, concurrent, or mutual. It can be in any form either oral or written but the preferred one is written because it may act as a piece of evidence in a court of law.
Written & Registered Wills can help the beneficiaries to prove their title to the property in the courts of law. Drafting a will is now vital since, regarding aiding in avoiding any potential future family conflicts, it also aids in estate planning, provided that the testator has registered the will and secured probate in accordance with the applicable statute.
So, it is better to consult an expert if you are juggling with the question: can an executor of Will be a beneficiary? Because most of the litigations are around this issue “Whether an executor of Will can be a beneficiary or not”? Contact our team of lawyers for drafting a will for you & guide you through the process of choosing whether the same person can be an executor or beneficiary of the Will.