Background Of Wills And Testaments
Testaments and wills in India are governed by Section 5 of the Indian Succession Act, 1925, which have separate rules for intestate succession and testamentary succession. This Section applies to all Indian individuals except those of the Muslim community (governed by Muslim Personal Law, which may be replaced by a Uniform Civil Code) and the Hindu Community (governed by The Hindu Succession Act of 2005, when no will has been made).
Who Is A Testator?
A person who has written and executed a will or any other person who makes a will is referred to as a ‘testator’ of a will. A will comes into effect at the time of or after the death of the testator. After creating a will, a testator must sign the will along with the signatures of two witnesses. Some other person can sign a will on behalf of the testator, under the direction and in the presence of the testator if, for some valid reason a testator is unable to sign a will. An individual needs to be at least 18 years old to be a testator.
What Is A Testament?
A testament, also known as a will, is a legal document (expressed in written form) created by a testator (signed and attested as well) to express how his or her property will be distributed at the time of the death of the testator. A testament or will is made for the transfer of self-acquired property and not ancestral property. A testament can be created by any individual that is 18 years or older. The purpose of a will is to enable a testator (who may not have a legitimate heir) to nominate a beneficiary, successor or legatee and bestow inheritance to that nominated person. The testator also nominates an executor in his or her will and it is the executor’s duty to manage the property until it’s final distribution to the beneficiary. If a person dies without creating a will, then that person is said to have died intestate. A will can be changed or revoked only during the lifetime of the testator (before death).
Duties And Responsibilities Of A Testator
There is no particular format for writing a will or drafting the same. Making a will is easy, but must be done by a competent and fair third-party and our legal professionals fit that bill. How to make a will in India? Any testator or person who wants to create a testament or a legal will is required to follow certain procedures as stipulated below:
A person has to declare that they are making a will in their full sense, without any undue influence or coercion.
Details of Property and Documents
The details and copies of the documents need to be filed with the will. The original location of such documents should also be stated in the will to enable the transfer of the same upon the death of the testator.
Registering a Testament or Will
Registration of a will is not compulsory in India. The endorsement of the registrar is sufficient to prove the execution of the will.
Attestation of the Testament or Will
A will shall be attested by two or more witnesses, that shall sign the will in the presence of the testator. Any person bearing witness to a will cannot also be a beneficiary in the same will (Section 67 of the Indian Succession Act, 1925).
Execution and Probate
Upon the death of the testator, a will can be executed by the executor or successor by application for probate. A probate will is a copy of a will certified by the court and serves as legal evidence.
All You Need To Know About The Testator Of A Will
Under Article 9 of the Indian Succession Act of 1925, a testator of a will should have testamentary capacity. Testamentary capacity is the mental ability and legal capacity that an individual has to make a new will or alter an existing will. This is also referred to as sound mind and sound memory or disposing mind and memory. A person cannot make a will if they don’t know what they are doing, or are in an intoxicated state of mind or afflicted by illness.
According to Section 2(b) of the Indian Succession Act of 1925, a codicil is a supplement to a will that enables a testator to make alterations to his or her will. Any changes, explaining, adding or altering made to a will by a codicil shall be deemed to be part of the will. A codicil has to be attested and executed (just as a will). A codicil can be executed as a separate document or endorsed on the original will.
There is no particular form of will prescribed by law. Here, at LegalDesk.com, we have customised drafts that you can use for attestation and registration for wills and other types of documents. Registration of a will is not compulsory, but it is recommended.