The Indian Succession Act, 1925 defines a will as the “legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. In other words, a will is a legal instrument specifying the method to be applied in the management and distribution of a person’s estate after his death.
A will is an important way you can stay in control over who gets what of your property.
A Will can be written by the testator himself or by an advocate, however a will in order to be valid its propounder has to satisfy the following criterion:
- that the Will was signed by the testator;
- that the testator had put his signatures to the testament of his own free will;
- that the testator at the relevant time was in a sound disposing state of mind and understood the nature and effect of the disposition;
- that the testator had signed in the presence of two witnesses who attested it in the presence of the testator and in the presence of each other.
What happens if I die without a will?
If you die without a valid will, you’ll become what’s called intestate. That usually means your estate will be settled based on the personal laws. For example in case of a Hindu, Buddhist, Jain or Sikh dying intestate his/her property shall devolve upon the legal heirs as per the mandate of Hindu Succession Act, 1956.
Muslim law recognises two types of heirs-sharers and residuaries. Sharers are entitled to a certain share in the deceased’s property. Residuaries take up the share in the property that is left over after sharers have taken their part.
Why do I need a will?
The biggest mistake in estate planning is not having a will. Not having a proper will in
place is likely to result in a lot of difficulty for the family members of the deceased person. The heirs may have to spend more time and bear higher expenses to claim the money willed to them.
Also not leaving a will may lead to undesirable (from the point of view of the
deceased) distribution of assets because when a person dies intestate (without a will),
his/her estate is passed on according to the succession laws applicable to the deceased as per his/her religion.
Who should act as witnesses to a will?
Any person can act as a witness to your will, but you should select someone who isn’t a beneficiary. Otherwise, there’s the potential for a conflict of interest.
Who has the right to contest my will?
Contesting a will refers to challenging the legal validity of the will. A beneficiary who feels snubbed by the terms of a will might choose to contest it. A will can be contested for any number of other reasons: it wasn&’t properly witnessed; you weren’t competent when you signed it, or it’s the result of coercion or fraud. It’s up to a probate court to settle the dispute. The key to successfully contesting a will is finding legitimate legal fault with it. A clearly drafted and validly executed will is the best defense.
What if I want to change my will?
There are two ways to modify a will. One is to add a “codicil” to it. A codicil is a document added to your will when the changes are minor and not likely to cause confusion. Similar to a will, codicils must be dated, signed, and witnessed.
The second way is to simply make a new will. If you decide to make a new will there must be a statement in the new will whereby you revoke your old will. A statement such
as, “I hereby revoke any and all wills and codicils heretofore made by me,” is an
effective way to revoke your old will.
To help you draft & register a valid legal will, Easy Kanoon has a team of experienced
lawyers who can provide you with tailor-made solutions specific to your needs. Email us
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.