How to create a will?

Will

Will is a legal document by which the person who makes such document i.e. the testator expresses his intention as to how the property must be distributed after his death and appoints such a person called as a executor who will manage the estate until such property is distributed in the manner as wished by the testator.

Laws regarding wills are governed by the Indian Succession Act, 1925.A property can be devolved in two types:

Intestate succession: When the person beholds the property dies without leaving back any will. Such property will be divided based on the classification of heirs as mentioned in the Act

Testamentary succession: When the person leaves behind any will or testament describing his intention to distribute the property, then it is called testamentary succession.

Procedure to create a will:

In order to create a will, the person must be of sound mind and had attained majority. Other persons such as lunatics, insane, any persons who were not under the influence of alcohol can create a will as well.

Unlike other documents, wills could be created easily. There is no particular form to create a will. It becomes effective when it is properly signed and attested. The words used in the will must not be ambiguous and unclear. It must clearly reflect the intention of the testator. No stamp duty is required for executing a will. The following are the procedures to create a will

  • Drafting of will: A will can be drafted by the testator or with the help of an attorney.
  • Attestation of the will: A will has to be attested by at least two witnesses who see the testator sign or affix his mark on the original will.
  • Such wills must be kept in a safe place to prevent physical damages and tampering.
  • The registration of will is optional under Indian Law. However for various reasons wills are always recommended to be registered.

Registration of will:

Registration of will is optional under Section 18 (2) of the Registration Act, 1908.  Wills can be presented any time for registration[i] and are not required to be presented within four months of execution. This is an exception to Section 23 of the Act.

The will can presented for registration to the Registrar or Sub registrar only by the executer or any person claiming so and the said registration can be done  after the death of the testator or by the testator himself during his lifetime.[ii]

Registration is held to be successful only when the Registrar is satisfied that the will was executed by the testator and such testator must be dead. The person presenting the will must be capable or entitled to present the will before the registration officer. [iii]

Language of the will:

Under the Indian Succession Act, 1925, it is not necessary to use any technical terms in any will. However the words used in the will must clearly state the intention of the testator. When the will is capable of being interpreted in two different ways, then the interpretation that gives some benefit or effect must be taken into consideration.[iv]

In Soorjeemoney Dossee V. Denobundoo Mullick[v], the Court held that the primary words of the will must be considered and they must convey the expression of the testator’s wishes. When the meaning is affected by the surrounding circumstances, then in such cases those circumstances should not be doubted.

The intention of the testator must be taken into effect as far as possible. For example, A testator made a will to dispose his property to his sons A and B and then to a hospital. The latter part i.e.) gift to the hospital is void under Section 118 of the Act and hence the former must be made into effect.[vi]

Case Laws:

In Tagore V. Tagore, the court held that a Hindu may bequeath his property to any one he likes. He may not only direct who shall take the estate, but may also direct what quality of estate they can take. Such persons must be alive at the time of bequeath to take place and the estate given must be recognized by the Hindu Law.[vii]

In Mahomed Shamsool V. Shewukram[viii], the Court held that a will need not be in any particular form and it is valid as long as it contains the testamentary wishes of the testator.

Probate and letters of administration:

In order to legalise a will, probate has to be applied in certain jurisdictions such as Mumbai, Kolkata and Chennai. Under the Indian Succession Act, probate is considered to be the proof for the legality of the will. Probate is defined under the Act as a copy of the will certified under the seal of a court of competent jurisdiction with the grant of administration of the estate of the testator. The competent court grants the probate to the executor along with the copy of the will.

Essentials documents for probate: 

  • The will is genuine and that is the last will that was made by the testator.
  • The proof of the death of the testator.
  • The will was executed by the testator with his clear mind.[ix]

Letters of administration:

In case of where any person dies intestate without leaving a will or when there is no executor for  particular will or when any appointed executor refuses to act, then letters of administration may be issued which entitles the administrator all rights that are essential for the efficient administration of the estate. Such an application has to be filed in the competent court of jurisdiction and such court will appoint an administrator to dispose the property.

Conclusion:

Wills are created for the purpose of transferring the interest of a person with regard to his property. Such wills must be understood and bequeathed in such a way that the testator would have wished. Wills expresses the direct intention of the person of the testator and must not be neglected.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[i] Section 27 of the Registration Act, 1908.

[ii] Section 40 of the Registration Act, 1908.

[iii] Section 41(2) of the Registration Act, 1908.

[iv] Section 84 of the Indian Succession Act, 1925

[v] 6 MIA 526,511

[vi] Section 87 of the Indian Succession Act, 1925

[vii] (1872) 9 Beng LR 377

[viii] (1874) 14 Beng LR 226.

[ix] https://vakilsearch.com/advice/probate/

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This is Shuruthi Jegannathan pursuing BA LLB in Sastra Deemed to be University. My areas of interest include Constitutional Law, Sociology, Criminal Laws and Jurisprudence. I would always love to play the role of the researcher in the moot court competition and has staunch interest in quiz competitions. I work best as a team member and I believe team works bring effective results. I am fond of Indian vegetarian cuisine and I'd love to claim myself as a foodie. I like binge-watching Tv Series. I see myself to be a person who continues to read and write a lot about legal issues in the coming future.