Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

INTRODUCTION

A Will mainly aims at:

  • Disposition of property
  • Being made according to the wishes of the testator

Its primary Characteristics are:

  • It takes effect after the death of the testator
  • It is revocable during the lifetime of the testator

KINDS OF WILLS

1. Conditional/ Contingent Will:

  • This is only enforceable in the event of the happening of the mentioned contingency

2. Joint Will:

  • Two or more persons may agree to make a conjoint will
  • This does not imply joint ownership

3. Mutual Will:

  • Two testators may confer reciprocal benefits through this instrument

4. Duplicate Will:

  • This is for safety purposes
  • One copy stays with the testator
  • The duplicate copy is kept with a bank/ executor/ trustee
  • Mutilation /Destruction of testator's copy revokes the Will
  • Both copies must be duly signed and attested

5. Concurrent Will:

  • This is generally used for disposition of properties in different countries
  • They are to be treated as independent of each other

6. Privileged Will:

  • A soldier in actual warfare may pronounce his will orally before two witnesses

ADVANTAGES OF A WILL

  • Avoidance of any family dispute by clear disposition of property in the will

    • Easy transmission of property on the basis of the will
    • Properties can be earmarked/apportioned for each beneficiary, leading to avoidance of dispute amongst legal heirs
  • Equitable distribution of property not necessary.
  • Some legal heirs may be excluded.
  • Disputes between legal heirs is averted.
  • Fraudulent family members can be excluded
  • Sensible choice today
  • Advantageous from the tax planning perspective
  • Special responsibilities can be catered to towards a needy family member
  • Special provision can be made for non family members
  • If No will,

    • you may be required to still go to the court for Letter of administration of properties, and
    • if only moveable properties left, one may be asked to obtain succession certificate from the court.
  • Usually Banks for bank accounts having good sum of money in the account or lockers /companies w.r.t. shares etc., insist upon succession certificate.
  • If there is a dispute who is the legal heir, this is the easiest way of planning.
  • Corporate restructuring / settlement after death.

WHO CAN MAKE A WILL?

  • The person should be of sound mind
  • The person should be a major
  • Person with disability (impaired hearing, vision or speech)
  • An insane person in a lucid interval of sanity
  • Foreigners and convicts

The following cannot make a will:

  • A person who is intoxicated or ill to a level that hampers his comprehension
  • Corporate bodies are incapable of making a will

ELIGIBILITY FOR MAKING A WILL

  • As has been provided for in Section 59 of the Indian Succession Act, the following are the basic criteria for making a will:

    1. Testamentary capacity and sound disposing mind
    2. Knowledge of contents
    3. Free from undue influence/ fraud/ coercion
    4. Voluntary act

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The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.