On the death of a person his property will be vested to others. The act of vesting or transferring it to others is called as succession. The law of Succession is divided into - testamentary and intestate succession. Making a will is an act of disposing property as per the law of testamentary succession. When a will is not made then it is called intestate succession and the property is vested by heirs as per intestate law.
What is a Will?
A Will is a voluntary legal declaration for disposition of property after the death of a person. As per the Indian Succession Act, 1925 the following are essential characteristics of a will:
Existence of intention for the testament to be effected after the death of the testator (person who is making a Will)
It is a legal declaration of intention with respect to property
The declaration of the property must have a disposition and not just an appointment of a successor
A Will can be altered or revoked by the testator at any point of time in his lifetime. This can be done by means of an instrument called a codicil
A testator can appoint an executor (person to whom the responsibility of the execution of the Will is assigned) and if the executor is not appointed, an administrator can be appointed by a competent authority (to administer the deceased person’s estate).
Who Can Make a Will?
Section 59 of the Indian Succession Act provides that any person of sound mind who is not a minor can make a Will.
Beneficiaries to a Will & Property Capable of Disposition:
Any person who is capable of holding property can be a Will’s beneficiary. This means that even a corporation, a juristic person, minors and someone of unsound mind can be a beneficiary of a Will.
With regard to property that can be disposed of by a Will there are no restrictions except that the testator must be capable of disposing of the property. This means that the property in question must be self-acquired.
How to Make a Will?
The Indian Succession Act recognizes two types of wills, unprivileged and privileged wills. Privileged wills are those that can be made my members of the armed forces employed in an expedition or engaged in actual warfare and can be made in oral form as well. A relaxation of formalities has been envisaged for them considering the inherent dangers and possibility of sudden death coupled with the lack of time and means to deliberately frame written wills.
Unprivileged wills are the wills that can be created by every person other than those who can create a privileged will. For a privileged will to be executed it is necessary that it be in writing. The law requires no particular form except that the words must be intelligible and clear. The testator is required to sign or affix his mark on the will or have it signed by another person in his presence or on his direction. Two or more witnesses to the fact of the testator’s assent being expressed by placing of a mark on the will are required. Section 18 of the Registration Act requires that it is not mandatory for a will to be registered neither is there a need for the will to be on a stamp paper. Any attempt by a person propounding an oral Will must provide very satisfactory evidence as there is a huge burden of establishing an oral will.
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