How a Will is executed and What are the laws governing Will in India?

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Every person desires that his hard earned money and properties gained through his hard labour should go to a proper person who can take care of it. Will is made by such persons to ensure as to how his property should devolve after his death. Indian Succession Act 1925 under Section 2(h) states that Will is a legal declaration made by a person with regard to his property who wishes to be effected after his death. Under Indian laws many succession laws govern the person’s property after his/her death. Will can be prepared or made by anybody who is 21 years of age in India.  The person who benefits from the Will is called a beneficiary or legatee. Will can also be called as a testament.

Essentials of Will are:

  • Name of the testator has to be mentioned without any errors in its initials or spelling which can be cleared by checking the birth certificate of the person.
  • Testator can make any person as a legatee or beneficiary of the Will but should be done according to the law.
  • Will can take effect only after the death of the testator.
  • Will can be revoked at any time during the lifetime of the testator.
  • A Testator can make innumerable Wills but only the last will shall have the legal effect or which will prevail.
  • If original will is lost then subsequent will can be said to be valid.
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Any person who is competent to contract can make a will who should be of sound mind and a major. A deaf and dumb person can also make a Will by giving consent through writing or gestures in sign language. Even a prisoner and alien can make a Will in India. Under Indian Succession Act, 1925 Sections 112 to 117 states that there are some restrictions on the disposition of property by Will in certain cases. Any movable or immovable property can be given off by a Will by the owner but it should not be an ancestral property of testator. As per Section 18 of the Registration Act, 1908 registration of a Will is not made compulsory but if it is registered it will be a strong legal evidence. Wills can be revoked voluntarily or involuntarily under Section 69 of Indian Succession Act 1925. Different laws that govern Wills are Indian Succession Act 1925, Muslim Law(personal law), Indian Registration Act 1908, Hindu Law (personal law). Probate is a copy of the will that is given to the Executor under the seal of the court and signed by registrar that the Will is proved.

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by Sushma Javare.