- 19-Apr-2025
- Healthcare and Medical Malpractice
In India, the legal procedure for executing a will involves several important steps to ensure that the will is valid, legally binding, and enforceable. The process of drafting, signing, and executing a will follows specific requirements outlined under Indian law, primarily the Indian Succession Act, 1925 for non-Hindu individuals, and specific personal laws (like the Hindu Succession Act, Muslim Personal Law, or Christian Personal Law) for different religious communities.
The testator (the person who makes the will) must be of sound mind and above the age of 18. The testator must be capable of understanding the nature and effect of making a will, the extent of their property, and the people who will inherit it.
The testator must not be under any undue influence, coercion, or manipulation at the time of drafting the will.
The will can be typed or handwritten. It must clearly state the testator’s wishes regarding the distribution of property after their death.
It is important to be as clear and precise as possible in stating the assets and how they should be divided among the beneficiaries. Any ambiguity in the will can lead to disputes after the testator’s death.
The testator should ensure that the will is free from any contradictions. A well-drafted will should also include details like the appointment of an executor (the person responsible for carrying out the instructions of the will).
The will must be signed by the testator at the end of the document. If the testator is unable to sign, they may make a mark (thumb impression) in the presence of witnesses.
Two witnesses are required to be present at the time the testator signs the will (or makes a mark). These witnesses must also sign the will in the presence of the testator.
Witnesses must be competent to testify in court. Generally, the witnesses should be adults and of sound mind.
Witnesses must not be beneficiaries of the will, as it could create a conflict of interest and lead to potential invalidation of the will.
The testator must sign or affix their mark on the will in the presence of the witnesses, and the witnesses must also sign in the presence of the testator. This ensures that the will is validly executed.
Under Indian law, registration of a will is not mandatory. However, it is recommended as it provides an additional layer of authenticity and avoids disputes in case the will is contested after the testator's death.
To register a will, the testator must present the will to the Sub-Registrar of the area where the testator resides. The testator and two witnesses must be present at the time of registration.
Registration is a public record and provides a safeguard against claims of forgery or disputes over the will’s validity.
Once the will is executed, it is essential to store it securely. The testator can keep it in a safe place, such as a bank locker, or with a trusted individual.
Alternatively, a registered will can be stored with the Registrar's office for safekeeping.
It is important to inform the executor and family members about the location of the will so that it can be easily found after the testator’s death.
After the testator's death, the will needs to be probated before it can be executed. Probate is the process by which the court formally validates the will.
The executor (named in the will) applies for probate in the court having jurisdiction, typically the District Court in the area where the testator resided.
The probate process involves proving the will’s authenticity, which includes verifying the signatures of the testator and witnesses, and confirming that the testator was of sound mind when the will was executed.
If the will is contested, the court will examine the evidence and may decide on its validity based on the facts presented.
Once the will is probated, the executor is responsible for distributing the estate according to the wishes of the testator. The executor must manage the deceased's assets, settle debts, and ensure that the property is transferred to the beneficiaries as outlined in the will.
The executor has the legal authority to carry out these duties, including transferring ownership of property, closing accounts, and ensuring that the estate is properly settled.
The testator has the right to revoke or alter the will at any time before their death. This can be done by executing a new will or by clearly stating the revocation of the previous will in a formal document.
A will is automatically revoked if the testator gets married (unless the will is made in contemplation of the marriage) or if the testator has children after making the will.
If an individual, A, wishes to leave her property to her two children, she writes a will clearly stating that her house should be given to Child 1 and her jewelry to Child 2. She signs the will in front of two competent witnesses, who also sign the document. A does not choose to register the will, but stores it in a secure locker. After her death, her children present the will to the probate court, where it is probated, and the property is distributed accordingly.
Answer By Law4u Team
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