Types of Will in India and Essential Elements of a Valid Will in India

Understanding the Types of Will in India is essential for ensuring a smooth transfer of assets without legal disputes. A will is a legally binding document that outlines how a person’s property should be distributed after their demise. This blog explores various Types of Will in India and the essential elements of a valid will in India to help individuals draft a legally sound document.

What is the Meaning of a Will?

A will is a legal document that outlines the wishes of a person (testator) regarding the distribution of their assets and properties after their demise. It ensures that the assets are transferred to the rightful beneficiaries as per the testator’s intentions. A will comes into effect only after the testator’s death, and it can be revoked or modified during their lifetime.

Creating a will is crucial to avoid legal disputes and ensure a smooth succession of assets. In India, the Indian Succession Act, 1925, governs the laws related to wills, defining their validity and execution process.

Types of Will in India

Understanding the different Types of Will in India helps individuals choose the most suitable format for their needs. The major types include:

1. Privileged Will

These are wills that an individual makes in extraordinary circumstances, such as when at war or a mariner at sea. Privileged wills can be either oral or written and are not limited by the normal formalities such as attestation. For instance, a soldier who is at war can say his wishes orally and the same will be considered legally valid.

2. Unprivileged Will

Unprivileged wills are common for civilians and persons outside exceptional circumstances. These should meet all statutory requirements, such as being written, signed by the testator, and witnessed by two witnesses.

3. Holograph Will

Completely handwritten and with the testator’s signatures, holographic wills are as authentic as any other document. Since the wills are in the testator’s handwriting, they seldom get disputed. Acknowledged in India following the historic judgment in Common Cause vs. Union of India (2018), a living will is a medical document whereby an individual can decide upon their healthcare preferences in the event of incapacitation. The individual may then refuse life support when a terminal condition is diagnosed. It is, therefore, an important document when a person plans for his death.

4. Conditional or Contingent Will

These are wills that are subject to the happening of some particular event. For instance, a will may specify that some of the properties should be transferred only if someone finishes his education.

5. Joint Will

A joint will is prepared by two or more persons, normally spouses, stating their joint intentions. For example, two spouses may draft a joint will where their jointly owned property will be transferred to the children upon the death of the surviving spouse.

6. Mutual Will

A mutual will is created when two individuals agree to distribute their property in a particular way that benefits both parties. If one party dies, the surviving party is bound by the mutual agreement.

7. Duplicate Will

A duplicate will is created when the testator wishes to keep a backup copy in a secure place. However, if one copy is destroyed with the intent of revocation, the entire will may become invalid.

8. Concurrent Will

A concurrent will is when a person executes multiple wills to deal with different portions of their property, especially when assets are spread across various jurisdictions.

Mischief of a Will

The concept of mischief of a will refers to the potential for disputes, fraud, and misunderstandings that may arise when a will is improperly drafted, manipulated, or contested. A well-drafted will helps mitigate these issues and ensures the testator’s wishes are respected.

1. Asset Distribution

The most important function of a will is to distribute assets according to the testator’s wishes. Without a valid will, disputes may arise among heirs, leading to lengthy legal battles. A well-drafted will provides a clear roadmap for asset division, reducing conflicts and ensuring fairness among beneficiaries.

2. Minor’s Guardianship

For individuals with minor children, a will serves as a crucial document to appoint guardianship. This ensures that, in the event of the testator’s demise, their children are cared for by a trusted guardian rather than leaving the decision to the courts.

3. Trust and Legacy

A will allows individuals to create trusts for the benefit of their heirs or charitable institutions. It also enables the testator to bequeath legacies to social causes, ensuring their values and beliefs are carried forward even after their passing.

4. Preventing Legal Challenges

An ambiguous or improperly executed will can lead to legal challenges from family members or other interested parties. Ensuring that a will is legally sound, clear, and well-documented reduces the likelihood of litigation and fraudulent claims.

Essential Elements of a Valid Will in India

To ensure that a will is legally enforceable in India, it must comply with the following essential elements:

1. Testamentary Capacity

The testator needs to be of sound mind and capable of understanding the consequences of their actions. For example, a will executed by a person under duress or mental incapacity can be declared null and void.

2. Free Consent

The decisions of the testator need to be free from coercion, fraud, or undue influence. This ensures that the will reflects the true wishes of the testator.

3. Clear Intention

A true will must clearly state the intent of distribution of assets that leaves no scope for controversy. The language of the will should be precise and unambiguous.

4. Signature and Attestation

The testator needs to sign the will, with the attestation of at least two witnesses who are present at the signing time. Witnesses must confirm that the testator was of sound mind while executing the will.

5. Procedure for Execution

• Drafting: The will should clearly state all types of assets, beneficiaries, and the mode of distribution.
• Registration: Though not mandatory, registering a will with the Sub-Registrar ensures authenticity and reduces the risk of legal disputes.

Applicable Laws Related to Wills in India

India’s diverse legal framework accommodates various religions and traditions, which influence how wills are drafted, executed, and enforced. Let’s explore the key statutes and principles.

Indian Succession Act, 1925

• Section 59: Specifies that any person of sound mind, not a minor, can make a will. If the person is temporarily mentally incapacitated or intoxicated, the will is invalid.
• Section 63: States that a will must be in writing, signed by the testator, and attested by at least two witnesses.
• Section 74: Provides rules regarding the interpretation of wills, emphasizing the testator’s intent.
• Sections 276-289: Describe the procedure to obtain probate, confirming the will’s validity.
• Sections 222-226: Define the role of an executor in implementing the testator’s wishes.

Hindu Law

Hindus, Buddhists, Jains, and Sikhs are generally governed by the Indian Succession Act, but ancestral property is subject to Hindu coparcenary law.

Muslim Personal Law

Muslims can only dispose of one-third of their estate through a will, with the remaining assets distributed as per Islamic inheritance rules. Muslim wills do not necessarily need to be written or witnessed.

Indian Registration Act, 1908

Registration of a will under Section 18 is not mandatory but adds authenticity and evidentiary value.

Indian Penal Code, 1860

Forgery, fraud, or undue influence regarding wills are covered under Sections 467 and 468, providing legal remedies for malpractice.

For expert legal assistance in will drafting, estate planning, and inheritance matters, contact Aditya & Co. Advocates today!

Conclusion

At Aditya & Co. Advocates, we understand the importance of drafting a legally sound will to ensure your assets are distributed as per your wishes without legal disputes. Whether you need assistance in choosing the right Types of Will in India, ensuring it meets the essential elements of a valid will in India, or navigating the legal complexities surrounding succession laws, our expert legal team is here to help.

Drafting a will is a crucial step in securing your legacy and protecting your loved ones. A properly executed will minimizes conflicts, ensures smooth asset transfer, and upholds your intentions. If you need legal guidance in drafting, registering, or executing a will, consult Aditya & Co. Advocates today. Our experienced Property lawyers in Bangalore will provide personalized solutions, ensuring your will is legally valid and enforceable.

Secure your legacy with expert legal advice contact Aditya & Co. Advocates today!