What is a will?

By Team Legal Helpline India, April 11, 2021

What is a will? explained in very simple manner by legal expert.

Advocate contact number in Delhi is 011-23355388 for any other services related to execution of will, challenge to will, probate and all other legal services.

Section 2(h) of The Indian Succession Act, 1925 defines a WILL. It reads as under:

(h) “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.

In common parlance, a will is an arrangement made by a deceased person during his lifetime for the distribution of his movable and immovable properties after his death. It is thus clear that a will is operative and can be enforced only after the death of the person executing it who is called the “testator”.

The person executing the will has full authority and power to alter, revoke or replace the will with a new will at any point of time as per his wishes. He can write a new will superseding the existing will or issue a Codicil, clarifying the contents of the existing will. Under Indian Succession Act, 1925, he has absolute right during his lifetime to do whatever he wishes to do with his will. The will becomes final only after his death. The will can not be modified or changed in any manner after the death of the testator.

WRITING A WILL:

A will can be written by any person determining the distribution of his moveable as well as immovable properties after his death in accordance with his will. He can only mandate for the distribution of the self acquired properties under his will. He can not change the inheritance share in any manner through a will.

It is not necessary that a will should be in writing. It can be oral as well. It is however good to write down a will in presence of at least two witnesses. It is also good to get the will registered to give it more sanctity and authenticity. Under the Indian laws, it is not mandatory to get the will registered but most of the people get the will registered to avoid any controversy after their death.

PROBATE OF A WILL:

Under the definition of Indian Succession Act, 1925, a probate is a letter of administration issued by the court with an attested copy of the will.  The legal provisions for a Probate is given under Section 217 of the Indian Succession Act, 1925.

The LRs of the testator or the deceased or the beneficiaries of the will is required to apply for Probate before the probate court. The court issues a notice to all the LRs of the deceased along with a public notice in the newspaper. Any person being affected by the will in any manner can file his objections to the grant of Probate by the court. The court on the basis of the authentication of the will and after determining all the  objections raised issues the Probate or the Letter of Administration which mandates the distribution of the properties of the deceased amongst the beneficiaries.

AMENDMENTS AND CHANGES IN A WILL:

The will can be amended by the person executing the will at any point of time as per his wishes. Besides that the will stands changed under the following circumstances as well.

i) After born child: If a child is after born of the will, the same will definitely change the arrangements made in the will. Any court dealing with the distribution of the property or execution of the will can take note of the aforesaid fact and change the arrangements of the will. The courts can also invalidate the will on the basis of the same.

 The court also takes into consideration the various aspects of the matter and see whether the after born child has a right in the property of the deceased or not. The court may also see and determine whether the testator had taken the afterbirth of the child at any stage and what was the period after the creation of the will and the birth of the new child and what arrangements have been made to distribute the wealth to the after born child by the testator.

It is generally seen that the after born child’s rights is also taken care by the court when dealing with such a situation.

ii) Ex-Spouses: If the husband creates a will for his wife and there is a divorce. In that event the will can be cancelled by the court or a different arrangement can be made by the court keeping in view the changes in the circumstances.

iii) Illegal subject matter: Court will automatically cancel the which contemplates any illegal act.   

CANCELLATION OF THE WILL AFTER THE DEATH OF THE TESTATOR:

 During the life time of the testator, the will can be only cancelled or altered by him. The will can however be cancelled due to some of the grounds which are:

i) Duress/undue influence: If the will has been executed under duress, force or undue influence then it can be cancelled even after the death of the person. 

ii) Insanity: If it is proved that the person executing the will was insane at the time of execution of the will, then the will can be cancelled after the dealth of the said person. 

iii) Fraud: If it comes to the notice of the court that some fraud has been played with the testator and the will is a result of some fraud then also the will can be cancelled. In case it is proved that the testator was not aware of the contents of the will and was made to sign , then also the will can be cancelled as a result of fraud.

iii) An after-dated will: If there are two wills and the will with the most recent date does not mention the cancelation of the first will, the will with the earliest date overrides the second. The second will be declared invalid and can be cancelled by the court.

iv) Age: If it comes to the knowledge that the person executing the will was below 18 years, then also the will can be declared invalid. 

WHAT IS A CODICIL?

A codicil is an amendment by way of any addition or changes to a previously-executed will. When a testator wishes to make changes to a will without altogether canceling the previous one, adding a codicil may be the easier option

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