Introduction
A will or a testament is a legal document that allows a person to decide how his property is to be distributed upon his death and which person shall be the manager of that until the final distribution. Wills are essentially used for real property while testament also refers to the personal property of an individual. Anciently used as a device for men without a male heir, the custom slowly evolved into a legal technicality. In this article, we shall explore the terminologies and legal jargon related to wills, the essential elements while drafting a will, the transfer of property by wills, and other procedural aspects.
Terminologies related to Wills
Intestate: This is used when a person dies without leaving behind a valid will. In the case a person dies intestate the laws in place specific to the religion of the person governs the process. There is the Indian Succession Act, the Hindu Succession Act and the Sharia laws to deal with intestate cases.
Testator: A person who drafts and executes a will is called a testator.
Beneficiary/Legatee: A person or organization whom you name in your will to whom you give your assets.
Executors: The people you name to handle the division of your assets. You can have up to four executors. The testator in most scenarios is also the executor.
Probate: The legal document to be obtained by the executors after your death giving them the authority to handle your assets.
Administrator: A person who deals with the division of your assets if you haven’t left behind a will.
Codicil: A legal document that amends or adds to a will. For a codicil to be valid, it has to be written and executed in the same way as the will it amends.
Procedure of a Will
The testator must clearly identify himself as the creator of the will and that a will is made. This is commonly referred to as the “will” and is generally followed by the words “last will and testament” at the beginning of the document.
The testator must declare that he will withdraw all previous wills and codices. Otherwise, a later will revoke previous wills and codes only to the extent that they are inconsistent and might require the interference of succession laws in case of challenge of the will. However, if a later will is completely inconsistent with an earlier will, the earlier will is implicitly withdrawn. You must start your will by declaring that you have a sound mind and that you want to be the executor of your will. Then you must list all your assets. This should include all the real estate you own, the money you have in your savings accounts, term deposits, and mutual funds. Clearly indicate who gets which assets. By walking past elements, ambiguities can be removed. To transfer your assets to a minor, you must appoint an asset manager. It is important to choose someone you trust as a custodian more importantly in the case of loco parentis.
You must sign your will in the presence of two witnesses. Your witnesses must sign to confirm that the will has been signed in your presence. The will must be dated here and you must provide the full names and addresses of your witnesses. You just need to confirm that you signed it in their presence and they need not be familiar with the contents of the will. After that date and place must also be stated at the end of the will. Each page of the will must be signed by you and your witnesses. Any correction in the will must also be countersigned by you and the witnesses. This basic procedure of developing a will and testament is honed from Indian laws and cases but also provides a universal idea of how will work in general.
Challenging a Will
A will is completely or partially invalid if you dispute it for the following reasons. A person can contest a will because he is missing some legally required parts. A will must be in writing and duly signed by the testator. This must be done in the presence of two witnesses. A will must also be dated. By law, a new testament with a later date would nullify the previous one.
By law, only adults over the age of 18 can make a will because they have will skills. When someone’s will is questioned because of a person’s lack of will, it often means that the testator was not in a good mood or had a disorder: senility, dementia, or madness were affected by a substance or poor mental performance. A person with a will must understand the nature and value of his assets and the legal implications of signing a will. Obviously, the testator’s knowledge and permission is required if it is known that the testator has the necessary will ability. However, a will can be challenged if it can be shown that it was made in suspicious circumstances in which the testator did not know the contents of the will.
A will may be challenged if it is established that it was obtained through fraud, adulteration, or improper influence by a third party that has exceeded the testator’s will to negotiate because of the manipulator. The person contesting the will must prove that the testator may have been tempted to sign the document if it was the result of a fraudulent act. A close relative of the testator could dispute the will and claim that the will was not provided for. By law, the head of the family is responsible for the proper maintenance of certain close relatives, which are laid down in the Hindu law of succession. You can ask the Family Court or the Supreme Court to make a provision outside the estate. It is advisable to challenge the will as soon as possible to avoid its enforcement. If the person contesting the will is successful, the will is considered invalid and the court will divide the property as if it never existed. This division follows the laws of the gut and is led by family relationships.
Conclusion
There often arises problems and complications when a person dies without a Will. Yet we put off making a Will, not realizing the predicament we put our family in, after our death. It’s a little effort that goes a long way.
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