WILL
Will is 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 - (Section 2(h) of the Indian Succession Act, 1925. A Will is an important document which enables the individual / any living person to rightfully leave his assets and wealth to whomever he chooses to, after his death. In a way a person can ensure that his wishes with respect to his assets and property are followed after his death.
The word Will is derived from the latin word “Voluntas” which was a term used in the text of Roman Law to express the intention of a testator.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. However Muslims are not governed by the Indian Succession Act, 1925 and they can dispose their property according to Muslim Law.
The chief characteristics of a Will are:
There must be a legal declaration of intention by the testator.
The declaration must be with respect to property of the testator.
The declaration should be effective and operative only after the death of the testator.
The testator has the liberty to revoke the will at anytime during his life time.
Section 59 of the Indian Succession Act, 1925 deals with persons capable of making wills.
∆ Every person who is of sound mind and is not a minor can make a will. In order to have testamentary capacity, a testator must understand:
• The effect of his wishes being carried out at his death, though it is not necessary that he should comprehend the provisions of the Will in their legal form;
•The extent of the property of which he is disposing;
• The nature of claims on him.
∆ Any married woman can make a will of any property which she could alienate during her
life time.
∆ Persons who are deaf or dumb or blind can make a will provided they are able to know what they do by it.
∆ A person who is of sound disposing mind although physically incapable of signing the name at the time of execution of Will is a competent person to make a Will.
∆ A person who is ordinarily insane may make a Will during an interval in which he is of sound mind.
∆ A will made by a testator of full capacity is not revoked by the fact that subsequently he became incapable of making a will or insane.
∆ No person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause that he does not know what he is doing.
∆ Where a person who executes an instrument purporting to be his Will, but does not understand the nature of the instrument, nor the effect of its provisions, then the instrument is not a valid Will.
The burden of proof to prove that the Will was made out of free volition is on the person who propounds the Will. A Will that has been proved to be duly signed and attested will be presumed to have been made by a person of sound mind, unless proved otherwise. Further, a bequest can be made to an infant, an idiot, a lunatic or other disqualified person as it is not necessary that the legatee should be capable of assenting it.
Wording of Will
Sec.74 of the Indian Succession Act, 1925 lays down that the use of technical words or terms of art is not necessary in a will but the wording should be such as to clearly indicate the intention of the testator. The Will can be made in any form and language.
An error in the name or description of the legatee will not prevent the legacy from taking effect.A mistake in the name of a legatee can be corrected by a description of him, and a mistake in the description of a legatee can be corrected by the name.
If the thing which the testator intended to bequeath can be sufficiently identified from the description of it given in the will, but some parts of the description do not apply, such parts of the description can be rejected as erroneous, and the bequest will take effect.
