A Will or testament is a legal document by which a person, who is known as the testator, expresses his wishes as to how his property is required to be distributed after his death. The testator also appoints one or more persons, who are known as the executor, to manage the estate until its final distribution. A Will acts as a legal document which is used for transferring the property of the testator after his death. The definition of a Will is mentioned under section 2 (h) of the Indian Succession Act 1925 which describes Will a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A testator should be at least 18 years of age and above. He must be of sound mind and must have testamentary capacity. In case if the will is not written/typed in the testator’s handwriting, then he must sign the will. Also, the will is required to be attested by two witnesses who are not beneficiaries in such will and who were present at the time when the testator has signed his will. The intention of the testator is one of the essential features of a valid will. Hence, all the wills that are mentioned below are required to meet specific standards in order to be considered valid in the Court.
Types of Will
Following are the types of Will that are available in India:
Privileged Wills - The Indian Succession Act 1925 provides certain privileges to a soldier, an airman and a sea mariner during their tenure of service. The provisions relating to such privileged wills are mentioned under section 66 of the Indian Succession Act 1925. Section 66 of the Indian Succession Act 1925 states the provisions relating to the mode of making the privileged will and the rules for executing such wills. A privileged will can be made in writing as well as orally. A soldier, an airman and a sea mariner are given privileges to make the will without following the legal requirements.
Unprivileged Wills - Section 63 of the Indian Succession Act 1925 states the provisions relating to the execution of unprivileged wills. Unprivileged wills are those wills that have been made by any other person (testator) except a soldier, an airman and a sea mariner. There is no privilege with regards to making the will without following the legal requirements. An Unprivileged will is a type of such will which is required to follow all the legal requirements.
Contingent/Conditional Wills - The Contingent/Conditional Wills are those Wills that can take effect only in the event of the happening of some contingency or condition. In case if the contingency does not happen or the condition fails, then such Wills are not legally enforceable. In case if the condition that has been imposed by the testator is invalid or contrary to law, then such a conditional will is invalid.
Concurrent Wills - The testator can make different wills for the property located in different geographical locations that are known as co-existing wills. It deals with testamentary declarations of a single testator. Such type of co-existing wills is considered to be known as Concurrent Wills. The testator under normal situation prepares a single will for his testamentary declarations. However, he can make different wills according to his wish.
Mutual Wills - Mutual wills are often used by spouses who intend to leave their property to one another. The surviving testator will inherit everything on the deceased spouse’s estate. When the surviving testator dies, the remaining estate will be distributed to the beneficiaries that have been chosen by the couple, according to the terms of the will. One thing to be noted is that a joint will cannot be revoked once the first testator dies.
Joint Wills - A Joint Will is a Will whereby two or more testators agree to make a conjoint Will. A Joint will is generally created with an intention to take effect after the death of all the testators. In a case where all the testators are alive, a single testator cannot revoke the will alone. A testator would require the consent of other testators to revoke their joint will. In case if all other testators have died, then a sole surviving testator can revoke the will alone.
Holograph Wills - A Holograph Will is a Will written entirely in the testator’s handwriting.
Duplicate Wills - A testator can make a Will in duplicate to keep it safe. A testator can keep one copy with himself and duplicate copy with a bank or executor or trustee. In case if the testator has mutilated or destroyed the one copy of a will which was in his custody, then it is considered as a revocation of both the copies.
Sham Wills - Sham wills are created for an immoral purpose like deceiving someone. Sham wills are not created for the testamentary operation and execution of the will. Sham wills are such types of wills that are used for executing collateral purpose and not for executing the testamentary operations.
The Registration of wills is not mandatory in India. The Registration does not affect the wills as such. However, it is advisable to register the wills with the registrar. After registering a will, the registrar then becomes the legal guardian of these wills. The registered wills are considered as strong evidence in law with regards to its validity.