Will is a legal declaration made by a person on a document that specifies how his assets will be distributed after his death. It is a one-time document that takes effect after a person’s death and allows you to make an educated decision about how your wealth, property, and assets will be allocated once you pass away. It is very important to know about drafting a will.
Wills are legal documents, but there is no standard format for drafting a will because they can be written or typed on any document, not only on stamp paper. A Will can be changed or canceled by the owner at any moment before death.
Types of will
There are two types of will, according to the India Succession Act: Privileged and Unprivileged wills.
Drafting of a will by troops serving on an expedition or in a war-like situation, as well as airmen and mariners are called as privileged will. There are few legal requirements for these forms of Wills which must be kept in mind while drafting a will, and they can be written or spoken.
Unprivileged Wills are all other types of Wills, and in order to execute them, a number of procedures must be completed, ranging from signature verification to witness attestation.
We’ll be mainly talking about unprivileged wills and drafting of will in this blog.
The Basics of a Will
The following are the basic qualities for drafting a will:
- The testator’s aim must be for the will to take effect after his death.
- A will is a formal statement of such a desire.
- The mode of disposing of the property must be included in the statement.
- During the testator’s lifetime, the Will can be canceled or changed.
Who has the authority to write the will?
The individual writing a Will must be of the following age group, according to the Indian Succession Act, 1925: –
- Any person who is not a minor.
- He/she is of sound mind.
The clause forbids a person from drafting a Will if he or she is intoxicated or unwell, rendering him or her incapable of comprehending the consequences of the actions.
Execution of a Will :
In order to begin the procedure of executing a will in India, a judge must grant Probate. It is a legal declaration of the will’s validity. It can be obtained by filing a petition with the court, including a schedule of the property and a copy of the will, as well as annexing a copy of the will to the petition. It should be specifically requested that the court approve probate in order to carry out the testator’s wishes.
What should be kept in mind while drafting of a will?
The following information should be included in the drafting of a will:
- Name, age, residence, and other information about the testator must be kept in mind while drafting a will.
- While drafting the will, it is critical that the testator certifies that he or she is of sound mind and free of any compulsion.
- Details of the beneficiary – Information on who will benefit from this will and how the assets will be distributed should be included, including the beneficiary’s name, age, residence, and relationship to the testator. The details must be minded while drafting a will.
- The will’s executor – It’s critical to designate an executor who will guarantee that the will is carried out according to the testator’s instructions. Name, age, residence, and relationship to the testator should all be included.
- Details of property and assets – It is necessary to identify all of the assets and properties that a testator has, as well as which ones are covered by the will. While drafting a will, details of property must be highlighted.
- Division of share – Each beneficiary’s portion of the property, as well as the specifics of who gets what, must be described in detail. If the asset is to be bequeathed to a minor, the will should also name a custodian for the minor.
- Specific Directions – The testator should offer specific instructions on how to carry out the Will and whether there are any further instructions.
- A signature by the testator in the presence of at least two witnesses is required. The witnesses do not need to know the specifics of the will; all they need to know is that the testator signed it in front of them.
What grounds exist for challenging a will?
It can be challenged for the following reasons:
- Coercion, fraud, or undue influence must not be present in order to prove that the Will was not written with a clear intention and that the testator was under duress.
- Suspicious aspects in the Will- There may be some elements in the Will that lead to a plausible conclusion that it was tampered with in some way.
- Absence of testamentary intention or capacity- This indicates that the Will may not reflect the testator’s desire to carry out or execute the Will. Lack of testamentary ability suggests that the testator was not of sound and reasonable mind at the time the Will was written.
- No proper execution- If the testator’s signature, as well as the signatures of the two witnesses, is missing, it might be used to contest the validity of the Will.
- Absence of knowledge- If the testator was unaware that he or she had signed the Will, this might be used to challenge the validity of the Will.
Writing a will and Drafting a will should be treated as a necessity to overcome disputes among heirs that arise after the death of a person. It declares the intention of the testator concerning the distribution of his asset after his death. It is an important that drafting of a will must be done under the supervision of a knowledgeable lawyer.