Wills

What is Will?

A will or testament is a legal document that expresses a person’s (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.

Though it has at times been thought that a “will” historically applied only to real property while “testament” applied only to personal property (thus giving rise to the popular title of the document as “last will and testament“), the historical records show that the terms have been used interchangeably. Thus, the word “will” validly applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator.

Format

Will

Type of wills

  • Nuncupative (non-culpatory) – oral or dictated; often limited to sailors or military personnel.
  • Holographic will – written in the hand of the testator; in many jurisdictions, the signature and the material terms of the holographic will must be in the handwriting of the testator.
  • Self-proved – in solemn form with affidavits of subscribing witnesses to avoid probate.
  • Notarial – will in public form and prepared by a civil-law notary (civil-law jurisdictions and Louisiana, United States).
  • Mystic – sealed until death.
  • Serviceman’s will – will of person in active-duty military service and usually lacking certain formalities, particularly under English law.
  • Reciprocal/Mirror/Mutual/Husband and Wife Wills – wills made by two or more parties (typically spouses) that make similar or identical provisions in favour of each other.
  • Joint will – similar to reciprocal wills but one instrument; has a binding effect on the surviving testator(s). First documented in English law in 1769.
  • Unsolemn will – will in which the executor is unnamed.
  • Will in solemn form – signed by testator and witnesses

Requirement of will

Will is a legal declaration of the intention of a testator with respect to his property, both movable and immovable. The essential characteristics of a Will are that it must be intended to come into effect after the demise of the testator and it must be revocable by the testator at any time.

  • Law of succession
  • Registration of a Will is optional and not compulsory
  • A will can resolve vexatious family issues

THE LAWS THAT APPLY TO MAKING OF A WILL ARE:

  • The Indian Succession Act, 1925
  • Hindu Personal Laws
  • Muslim Personal Laws
  • The Indian Registration Act, 1908

Who Can Make A Will?

In most states, any person who is 18 or more years of age and of sound mind may make a will. In many states, a person who is married or in the armed forces is allowed to make a will, even if he or she is under the legal age. If you are underage and wish to make a will, you should check with an attorney.

FORMS & FORMALITIES FOR MAKING A WILL

  • There is no prescribed form of a Will. For it to be effective, it needs to be properly signed and attested. The testator must put his initial Will at the end of every page and next to any correction and alteration.
  • A Will can be written in any language. No technical words need to be used in a Will. The words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.
  • No stamp duty is required to be paid for executing a Will or a codicil. A Will need not be made on stamp paper.

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