Almost everyone is familiar with the general idea or concept of a will. We know it is a written statement made by a person expressing how one would like his or her assets to be distributed in the event of one’s death. And yet, several people die every year without a will causing family feuds and disputes. Family courts are filled with property disputes due to a lack of a will or a lack of clarity in the will. In this article we’ll discuss about the eligibility of a will & the types of wills.
A will need not be made just before a person’s demise. The person can plan his/her will well in advance. In fact the process of drafting a will pushes a person into addressing the tedious task of planning their long term finances and of course, face the idea of mortality. This may also be the reason why many people put off drafting the will under the presumption that they have ample time to do so.
One can draft a Will by hand or type it out. It should contain clear information about personal and family details, property, beneficiaries, and witness information. It is important to ensure that the Will is created under sound mental capacity, without any external pressure, fear, or coercion.
Will is a type of legal document used to transfer the property of a person after death as per his/her wishes. The importance of Will cannot be stressed enough as lakhs of civil cases are pending before various Courts for resolving inheritance disputes. Further, all Wills are revocable at any time during the life of the person and is a confidential document. Hence, it is important for everyone to know about the benefits of having a Will and create a Will.
Unprivileged Will
Will created by a person who is not a soldier employed in an expedition or engaged in actual warfare or a mariner at sea is known as an unprivileged Will. For an unprivileged Will to be valid, it must satisfy the following conditions:
- The person creating the Will must sign or affix his/her mark to the Will. Else, some other person should sign as per the directions of the testator (Person creating the Will) in his/her presence.
- The signature or mark of the testator or the signature of the person signing for the testator must be placed so that it appears that it was intended to give effect to the writing as Will.
- The two or more witnesses should attest to the will. The witnesses must have seen the testator sign or affix his mark to the Will or has seen some other people sign the Will, in the presence and by the direction of the testator.
Privileged Will
Privileged Wills are Wills that may be in writing or made by word of mouth by those in active services like a soldier, airman or mariner. The legal requirement for the validity of a privileged Will has been reduced to enable certain persons to quickly make a Will. The following conditions are applicable for a privileged Will:
- The testator writes the whole will with his own hand. In such a case, it need not be signed or attested.
- The testator should sign the privileged Will written wholly or in part by another person. In such a case, there is no requirement for attestation.
- A Will written wholly or partly by another person and not signed by the testator is a valid Will if it is proved that it was written by the testator’s directions or that the testator recognized it as his/her Will.
- A half-completed privileged Will is also considered valid if it is proved that non-execution was due to some other reason and does not appear to be an abandonment of intentions to create a Will.
- A privileged Will can be made by word of mouth by declaring intentions.
- If a soldier or airman or mariner has given written or verbal instruction for the preparation of a Will but has died before it could be prepared and executed. And such will is a valid Will.
Conditional or Contingent Wills
A Will can be expressed to take effect only in the event of satisfying certain conditions or can be contingent upon other factors. Such a Will, which is valid only in the event of the happening of some contingency or condition, and if the contingency does not happen or the condition fails, is called a conditional or contingent Will.
Concurrent Wills
Concurrent Wills are written by one person wherein two or more Wills provide instructions for disposal of property for the sake of convenience. For instance, one Will could deal with the disposal of all immovable property whereas another Will deals with the disposal of all movable property.
Joint Wills
Joint Will is a type of Will wherein two or more persons agree to make a conjoint Will. If a Joint Will intends to take effect after the death of both persons, then it would not be enforceable during the life-time of either. The person at any time during the joint lives or after the death of one can revoke the joint will.
Mutual Wills
In a Mutual Will, the testators confer upon each other reciprocal benefits. A husband and wife will execute a mutual will to pass on all benefits to the other person during their lifetime.
Duplicate Wills
The testator will create a duplicate will for the sake of safety or safekeeping with a bank or executor or trustee. However, if the testator destroys the Will in his/her custody, then the other Will is also considered revoked.
Sham Wills
Sham Wills are executed but held invalid if the testator does not intend to execute as per his/her wishes. As per the Indian Succession Act, a Will made by fraud or coercion or by taking away the free agency of the testator is considered invalid.
Holograph Wills
The testator writes this holograph wills entirely in its own handwriting.
Who Is Eligible?
According to the Indian Succession Act, 1925, any adult of a sound mind can be note a will. However, this act excludes Muslims as their laws are mostly governed under Muslim Personal Law.
A married woman is also eligible for write down a will if she can isolate the property solely belonging to her. But not by anyone whom she may be dependent on, i.e. husband or parents.
Having visual or hearing impairment does not incapacitate you from a will.
Any person under a state of intoxication (voluntary or involuntary), illness or any similar cause cannot make a will.
Registration Of A Will
While it’s advisable to register one’s will, especially if you perceive future disputes, registration of will is not mandatory. Now, let’s look at the difference between registered will and unregistered will. The registration, however, gives it legal validity. It may also be noted that if a will is not registered it doesn’t mean it cannot be executed. The unregistered will is perfectly valid. However, if you intend to register the will, here are the steps that need to be followed
- You will have to register the will before the Sub-Registrar or the Registrar of the district court under whose jurisdiction a major part of the property lies.
- In all normal or ordinary cases, the registration process has to be in the offices of the Registrar or the Sub-Registrar. But, in special cases, Section 31 of the Registration Act provides an exception.
- The section states that the “officer may on special cause show to attend at the residence” for the registration process of the will.
- The cause may be ill health, impending death and other such situations.
- The Registrar has the responsibility to examine the document carefully and make sure no legal errors are there in the same before signing on the registration.
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