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Will/Testament- What Is Will Or Testament?

  • Definition of will
  • Types of will
  • Living will
  • Registration of will
  • Valid will

What Is Will Or Testament?

A last will/testament is legal documents that express/communicate the final wishes of a decedent (the testator) for the administration and division of his estate after his death.

Will is defined under Section 2(h) of The Indian Succession Act, 1925 as:

“will" means 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”

TYPES OF WILL?

1. UNPRIVILEGED WILL

Unprivileged Will could be written by any individual and it needs to be signed by the testator in presence of at least two witnesses. As an example an Unprivileged Will could be written by a sailor or an airman engaged in a war or on an expedition, other than a soldier.

2. PRIVILEGED WILL

Privileged Will can be differentiate from Unprivileged Will as the entire Will can be written by testator himself in his own handwriting but it doesn’t need to be witnessed by any person. But Unprivileged will supersede Privileged Wills as it can be revoked by an Unprivileged Will.

3. CONDITIONAL WILL

Conditional Will can also be referred to as Contingent Will as the will only become effective if certain event happens/occurs. So testator can affix certain conditions to the will, that only makes it effective.

4. JOINT WILL

Will that is written by two or more persons together and that becomes operative only after death of all the testators. It can be revoked by any of the testator during their lifetime.

5. MUTUAL WILL

Mutual Will can be written by two persons in favor of other in case of their death. For example, a married couple can write a mutual will which makes their child/survivor the sole owner of their wealth.

6. CONCURRENT WILL

This type of will is for persons who have properties in more than one country so they execute different wills for their properties in different nations.

Difference Between Last Will Vs Living Will

A last will/testament is a legal document that generally depicts his final wishes to dispose off his property/estate after his death. This will becomes effective only after the death of testator.

In contrast, a Living Will general depicts directions, generally medical directions that he wants to be followed in case he becomes seriously ill and in that position that he is unable to take any decision. Living Will is generally a Contingent Will that becomes effective only if certain event happens.

Eligibility Criteria For Making A Valid Will

  • Testator must have completed 18 years of age;
  • Testator have sound disposing mind or able to take his own decisions;
  • Testator is free from fraud, coercion or any undue influence;
  • Testator must have knowledge of contents of the will

Important To Consider While Drafting A Will

  • The words must be written with utmost caution. They must clearly depict the intention of the testator without an ounce of doubt or ambiguity.
  • There must not be any conflict between words and language in the Will.
  • No clauses should oppose each other or be inconsistent.
  • It is essential that the clauses in the Will must be harmoniously construed.
  • There is no good o0r bad time to make a Will. Any major person with any assets can make a Will with an ease to amend it or add more to it at the later stage.

What are the services Lawyerinc offers for Will?

Our services:

Our comprehensive range of end-to-end solutions includes following:

  • End to end services for Will drafting.
  • We have expertise in drafting and executing will/testament.
  • We will get in touch with you through renounced lawyers in this field.
  • Free consultation for any enquiry that you may have about will.
  • Will would be drafted by us and we will help you to execute the same.
  • You will get your Will done without any hassles.

*Any fee, stamp duty and miscellaneous charges shall be payable extra.

Do contact us in case of any query related Will drafting and much more.

To avail any of the above-stated services, kindly establish contact by posting a query at our site.

Procedure For Making A Valid Will

  • The Will needs to be signed or affix mark by testator in presence of 2 or more witnesses;
  • The Will needs to be attested by 2 or more witnesses;
  • The Will needs not to be witnessed by witnesses where executor is appointed who can witness the same;
  • The Will can be executed on plain paper itself, use of Stamp Paper is optional;
  • The Notarization/attestation of will by Notary Public/Oath Commissioner is optional and as per the will of testator;
  • Although Registration of Will in India is optional and totally upto the testator but it is always advisable to get it registered for higher authenticity of the same;
  • The Will can be registered at the office of the Sub-Registrar;
  • The Will can be registered even after the death of testator as per Section 40 of Indian Registration Act, 1908;
  • The revocation/alteration of the Will can be done as per Indian Succession Act, 1925

Is It Mandatory To Get A Will Registered?

No. one may proceed with an unregistered Will. However, a registered Will has more legal sanctity than an unregistered one.

A Will can be registered at the office of the local sub-registrar in the presence of the testator and two witnesses during the process of registration.

It is advised that the witness must be someone who can verify the mental health of the testator while making he will.

The desire of a person may change as per the circumstances and he may want amendments to be made in the Will. Since the registration fee is fairly low, one can easily revise or amend the will as many times as wanted. Each new version can be registered by paying the due registration fee paid.

Stamp Duty

Registration of a Will does not attract any Stamp Duty. Only a nominal prescribed registration fee has to be paid. The registration fee shall vary from one state to another.

Why Opt For Registering A Will?

  • A registered Will has a greater legal and evidentiary value.
  • If the original Will gets destroyed or lost, a certified copy of the Will shall be safe with the Registry and can be obtained at any time.
  • 3. If the original Will is tampered with or any such doubt arises, a certified copy of the Will can be obtained from the Registry to compare them both. It is in the best interest to register the Will.

Is It Essential To Appoint An Executor In The Will?

An executor is a person who is entrusted with the execution of the last Will of a deceased person. The executor derives this authority through the Will as he is named in it. The executor is assigned the duty to ensure that the directions in the Will are carried out appropriately.

Though it is not mandatory to appoint an executor in a Will yet it is a widely popular and preferred practice. An executor must not be a beneficiary of the Will, rest can be any trusted person or any lawyer as well.

An Executor cannot establish his right under a Will unless a probate of Will is obtained from a competent court.

Frequently Asked Questions

  • 1. What if one dies without any will?

    If one died Intestate, his property will be equally distributed amongst the family members as per the personal/state law of the deceased without any regard to the real intention of the deceased person.

  • 2. Does movable property also covered under will??

    Yes, all movable as well as immovable assets to be included in Will including Real Estate, Fixed Deposits, Money in Bank Account(s) Securities, Bonds, etc. That includes as per desire of testator.

  • 3. My grandfather makes the will but it is not signed. Is it valid?

    No, an unsigned will is not legally valid document. An unsigned Will is as good as no Will at all.

  • 4. Is there any witness required to execute will?

    Yes, minimum 2 witnesses are required for the same.

  • 5. If I am in hospital, do I need to sign it before doctor or advocate?

    No, any 2 witnesses are required or you can attach a fitness certificate from your family doctor along with the Will attesting the soundness of your mind.

  • 6. Why to get will draft through lawyerinc?

    Lawyerinc is a complete blend of professionals from across the globe. In –house team of lawyers and attorneys, CA, CS. All professional work together in Lawyerinc, providing you end to end solution. It guarantees delivery in the shortest and most reasonable rate in India. It enjoys a global presence.

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