Select Location
Property Law

Everything you need to know about Drafting a Will

Will is an instrument which declares the intention of the testator regarding the manner of disposal of his assets after his death. The article focuses on the various aspects relating to drafting a will, as well as the essentials of a will. A sample format is provided and aspects relating to challenging a will have also been elaborated.
7,759

A Will is a legal document which declares the intention of a person regarding the distribution of his assets after his death. Will is a unilateral document which takes effect upon the death of the person. The person making a will may revoke or alter it at any time prior to his death.   

Indian Succession Act, 1925 governs the provisions relating to a will made by Hindu, Buddhist, Sikh or Jain. Muslims are governed by Muslim laws and not by the Indian Succession Act, 1925.

Table of Contents:

Essentials of a Will

A Will has the following essential characteristics:

  1. The intention of the testator must be to take effect after his death

  2. Will is a form of a legal declaration of such intention

  3. The declaration must involve the manner of disposal of the property

  4. Will may be revoked or altered during the lifetime of the testator

Who Can Make a Will?

As per Section 59 of the Indian Succession Act, 1925, the person making the ‘Will’ must be of: -

  1. Age of majority

  2. Sound mind

Further, the section states that a person ordinarily of unsound mind may make a Will during the interval of the soundness of his/her mind. The section prohibits a person from making a Will when in state of intoxication or illness which makes him/her incapable of understanding the consequences of the act.

details Included in a Will

Register: Will Online in India

What Should Be Included in a Will?

In accordance with Section74 of the Indian Succession Act, 1925 a Will may be made in any form and language. Following details must be included in a Will: -

  1. Personal Details – You have to state your name, father’s name, residential address, Date of Birth, etc.

  2. Declaration of Date – It is very important to clearly mention the date of preparing your Will.

  3. Validate Free Will – You can mention that you are not under any influence and you are not forced to prepare this Will, by any person.

  4. Provide Executor’s Details – Executor is the person who will implement/execute your Will. Hence, clearly mention his/her name, address, your relationship with him/her, age, etc.

  5. Details of Assets & Beneficiaries – This is a very important section. List all immovable properties with clear addresses. Mention the movable assets like bank deposits, insurance, units of mutual funds, etc. Mention the name of the beneficiary for each asset.

  6. Signature – Sign the Will after mentioning the above details

  7. Signature of Witnesses – You have to get the Will attested by a minimum of two witnesses. Make sure that they mention their father’s names and addresses.

Sample Format of a Will

Following is a sample format of a Will: -

I, ——————, son/wife of ——————– ,resident of ——————– ,age _ _ years, am making this will on the _ _ day of _ _ _ _ _ _ _ out of my free will and without any coercion or undue influence whatsoever and state that this is my last will and that I hereby revoke all Wills and codicil made by me at any time heretofore, I bequeath my property, interests and other rights as follows:

  1. I bequeath on my death to _ _ _ _ _ _ _, my title interests and all other rights which I have as owner of the residential / Commercial Property at _ _ _ _ _ _ _ , I hereby state that he shall be

entitled to use and enjoy the said property at his own will after my death.

  1. I bequeath on my death the following ornaments and jewellery belonging to me to _ _ _ _ _ _ _:-(Give the list of the ornaments)

  1. I bequeath on my death, cash balances lying with me at the time of the death to _ _ _ _ _ _ _.

  1. I bequeath on my death, bank balance lying in my name at Savings/Current Bank Account No._ _ _ _ Bank of _ _ _ _ _ _ _ ,_ _ _ _ _ _ _ Branch, _ _ _ _ _ _ _ at the time of my death to _ _ _ _ _ _ _ .

  1. I bequeath the amounts receivable by me the time of my death from various parties on various accounts to _ _ _ _ _ _ _ .

  1. I bequeath the amounts and other valuables owned by me and lying in locker number _ _ _ _ in my name at Bank _ _ _ _ , Branch at the time of my death to _ _ _ _ _ _ _ .

  1. I direct that a sum of rupees _ _ _ _ Only (Rs. _ _ _ _ /-) be set apart from my assets at the time of my death and be donated to a charitable trust or persons whose aim and objective is to provide food, medical assistance, education assistance, etc to the needy persons.

  1. I direct that before distributing my assets in accordance with this will, all my debts, liabilities and monetary obligations including all testamentary expenses, costs, charges, expenses in respect to probate and other legal charges at the time of my death be met out of my assets.

  1. I bequeath all the other residuary property, assets and other rights whether or not existing at the time of my death to _ _ _ _ _ _ _ .

I further state that Mr, _ _ _ _ _ _ _ is appointed as the executor of this will.

I declare that I am the owner of the properties mentioned in this will and am entitled to make this will. I am of sound mind and health at the time of making this will.

In witness whereof, I have hereunto set and subscribed my hand and signature on this _ _ day of _ _ _ _ _ _ _.

Signed

Signed by Mr. _ _ _ _ _ _ _ on his last will and testament, all being present at the same time. Thereafter at his request and in his presence, We subscribed our respective names and signatures as attesting witnesses all being also present at the same time.

Signature of the Witnesses

  1. I have witnessed and read the aforesaid will.

Sign

  1. I have witnessed and read the aforesaid will.

Sign

  1. I have examined Mr. _ _ _ _ _ _ _ on the date of this will and wish to state that he appears to be of sound mind and sound mental health at the time of making the above will.

Sign of doctor

Registration of the Will

In accordance with Section 18(e) of the Indian Registration Act, 1908 the registration of a Will is not compulsory but optional. The testator may or may not get the Will registered. Registration of the Will removes all doubts of ingenuity revolving around the Will. All future ambiguities and hindrances are removed just by getting the will registered. However, mere registration of a Will is not sufficient. In case the Will is made after the registered Will, subsequent Will supersedes.  

What are the Grounds for Challenging a Will?

There are various grounds for challenging the validity of a Will. Seven such grounds for challenging a Will are listed as follows:

  1. Lack of due execution - A valid Will has to be in writing and signed by the testator in the presence of two witnesses. If the conditions are not complied with, the Will can be challenged in a court of law.

  2. Lack of testamentary intention - Here, the person has to prove that the testator had not intended to make a Will. This plea is difficult to prove, but if proved - the Will shall be invalid.

  3. Lack of testamentary capacity - The law recommends people above the age of 18 years to make a will. Adults are presumed to have testamentary capacity. It can be challenged on the basis of senility, dementia, insanity, or the testator was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Challenging a will based on mental capacity, it must be shown that the testator (the person who created the Will) did not understand the consequences of making the Will, at the time of its creation.

  4. Lack of knowledge or approval - Here you can take the ground that the testator did not, in fact, know what was in the Will when he/she signed it.

  5. Undue influence - A Will can be challenged by depicting that the Will was procured by fraud, forgery, or undue influence. This usually involves someone manipulating a vulnerable person into leaving property to the manipulator. The term "undue influence" merely means that the person lacked the free will to bargain because of the manipulator.

  6. Fraud or forgery - The burden of proof would be on the person challenging to establish that the Will was forged (not made by the testator) or was made as a result of a fraudulent act.

  7. Revocation: Claims by family - A family member can challenge a will on the grounds that they were not provided for adequately in the Will. The law states that the head of a family is responsible for the proper maintenance of certain close family members, who are specified in the Hindu Succession Act. If a proper provision is not made for these people in the will, or they are not adequately provided for by the laws of intestacy, they can make a claim in the Family Court or the High Court asking for provision to be made for them out of the estate.

Procedure to Challenge a Will

Top Read: Probate of Will - Meaning, Procedure, and Duration

Procedure to Challenge a Will

Step 1: Filing of the suit

The suit must be filed before the appropriate civil court. Different states in India have different nomenclature of courts.

Step 2: Issuing of Vakalatnama

Vakalatnama, gives authority to a lawyer to represent on their client. No tax is levied on the paper of Vakalatnama, but nowadays various high courts have started to issue stamp papers of various denominations.

Step 3: Paying of requisite court fee

Different courts prescribe different court fees. The court fees are generally dependent upon the value of the suit. The prescribed court fee is to be deposited with the court for initiating the suit.

Step 4: Initiation of proceeding and writing of a statement

After the case is accepted, the court will release summons, issuing notice to the opposite party to appear before the court. Before such date, the defendant is required to file his “written statement,” i.e. his defence against the allegations raised by the plaintiff, within 30 days from the date of service of notice, or within such time as given by the court. The burden of proof is on the person making the allegation on the Will to prove that such Will is mala fide in nature and do not represent the intention of the testator.

Step 5: Filing of several documents in support

In order to support the claim, the plaintiff must submit various documents as evidence before the court.

Challenging a Will After a Probate

'Probate' means the copy of a Will certified under the seal of a court. Probate can be termed as official proof of will. It is issued to the executor, who is authorized to execute the Will. Probate is granted by the court after following a complete procedure. Court grants probate only after it is satisfied with the validity of the Will and hearing all objections, (if any) in relation to the Will.  

Probate adds to the legality of the Will. However, the Succession Act provides for certain grounds on which a Probate of a Will may be revoked. Such revocation can only be there if the person challenging the Probate is able to convince the competent court that it is necessary to revoke the Probate 'for just cause'. Further for challenge of a probate, the law of limitation must also be abided by, as probate operates as a 'right in rem' granted by the competent court, operates from the date of grant of Probate, therefore a challenge which is hopelessly barred by limitation cannot be entertained by any court of law. Further, an order of revocation of the Probate would operate prospectively and such revocation does not obliterate bona fide transactions entered into by the executor during the pendency of the Probate.

The Probate of Will can be challenged on the following grounds:

  1. The proceedings to obtain the grant of Probate were defective in substance

  2. The grant of Probate was obtained fraudulently by making a false suggestion, or suggestion, or by concealing from the court something material to the case

  3. The grant of Probate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently

  4. The grant of Probate has become useless and inoperative through circumstances

Waiver of Right to Challenge the Will

A contractual waiver of the right to challenge a Will can be made by signing a family agreement, where a set of members abandon claims to certain properties and acknowledge that the title to such property vests in the testator. The testator can dispose of the properties by way of Will without a challenge.

Determination of the validity of a waiver would depend on the facts of each case; such a waiver is usually considered to be legally valid if it has the following elements: 

  1. An intentional relinquishment of a right;

  2. A conscious abandonment of an existing legal right, privilege, benefit or claim, which if not for the waiver, the party could have enjoyed;

  3. A clear and unambiguous agreement not to assert a right; and

  4. Complete knowledge on the part of the partes waiving the right, regarding the rights they are intentionally abandoning.

 

Written by: Utkarsh Sharma

Rajiv Gandhi National University of Law, Patiala (3rd Year)

Reviewed by:
Mehak Sharma
Published on 18th Jun, 2019
7,759 views