INTRODUCTION
One of the most basic legal documents is a will, which gives people the power to specify how their property and belongings will be handled and divided after death. The administration procedure, which guarantees that the decedent’s desires are faithfully carried out and in compliance with the law, is essential to the idea of wills. Changes or amendments, however, can be required in some situations to take into account new information or objectives that weren’t included in the original will. Codicils are used in this situation.
A codicil is an additional document that lets people amend, add to, or revoke an existing will without having to start over from scratch. This adaptable legal tool is a useful resource for people who want to change their testamentary instructions without sacrificing the integrity of their overall estate plan.
WHAT IS A WILL?
A will is a legal document that ensures the distribution of your assets and possessions according to your posthumous wishes. Whenever someone dies without leaving a will, problems and difficulties usually follow. Nevertheless, we neglect to write a will because we are unaware of the financial strain we put on our remaining relatives.
A will is said to be “the legal declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death.” To put it another way, a testament or will is a written declaration made by an individual that specifies how they want to dispose of their belongings, but that designation only takes effect upon the testator’s passing.
ESSENTIAL ELEMENTS OF WILL
According to Indian will law, which is outlined by the Indian Succession Act, 1925[1], an Indian will must contain the following key components:
- A person must be at least eighteen years old and of sound mind in order to write a will. This prevents minors and those who are mentally incompetent from drawing wills.
- Drawing a legal will is prohibited for anyone who is incapable of making a sound decision or who is mentally impaired due to disease or alcohol and is unable to comprehend the implications of their actions.
- Any portion of a will that was not drawn when the will was being written with free permission, or that was coerced or encouraged to be made by threats, force, or other means, is void and unenforceable under law[1].
IMPORTANCE OF A VALID WILL
It is impossible to overstate how important it is to write a proper will. In addition to making estate planning more effective and efficient, a will helps the deceased’s family members avoid needless arguments and legal disputes. Additionally, it aids in protecting the rights of the deceased’s lawful heirs against any surviving family members or claimants who might want to assert their own claim to the deceased’s estate.
The ability to distinguish between the nominee and the beneficiary is the primary function of a will. A nominee is a person who possesses property prior to its ultimate distribution in accordance with the terms of the will, whereas the beneficiary is the person who really obtains the property. With the aid of a will, the testator can choose a candidate for the distribution of assets in accordance with their wishes.
Having a will in place to help arrange for finances and guardianship of dependents or minor children is one of its main advantages. In the event of an unfortunate parent’s death, the courts have the exclusive authority to distribute assets and designate guardians in the absence of a will. Nonetheless, parents or a single parent might name guardians and set aside money for their kids’ futures and education by utilizing a will.
A will aids in designating executors who will oversee the deceased’s social media profile following their passing and manage their digital presence in the modern era, when social media celebrities rely heavily on it for income.
OTHER IMPORTANT FEATURES OF WILL
Any adult who is of sound mind and is not a minor may use a will to dispose of their belongings. Any property that a married woman could alienate during her lifetime by her own actions may be distributed by will. If they are able to understand what they do with it, people who are blind, deaf, or stupid can make their own wills. It would be intriguing to learn that even someone who is typically insane is capable of making a will when he is mentally competent. A father may name a guardian for his child when they are minors in his will. Any portion of a will gained through deception, compulsion, or opportunity is null and void. If a gift is given in support of an individual based on deception or fraud, only that bequest becomes void and
not the whole Will[2].
REGISTRATION OF WILL
Whether registering a will is required is a common issue asked by someone who want to carry out their testament. It is not required to register a will under law. There is no evidence-based rule or legal need that a physician be present at the execution of a will[3].
However, in order for a will to be registered, the testator must produce a medical certificate attesting to their mental and physical fitness. This need is mandated by process from the Registrar. The Supreme Court ruled that there is no legal requirement for a will to be registered, and as most wills are not registered, it would be completely unjustified to infer anything about the authenticity of the will based on its nonregistration[4].
The Supreme Court noted in Purnima Devi vs. Khagendra Narayan Deb[5], that a Will’s registration is a circumstance that, depending on the facts, may demonstrate its validity. However, if there is any doubt about a Will, the registration itself will not be enough to clear it up on its own without closely examining the registration documentation.
In the Venkatachala Iyengar vs. Trimmajamma case[6], the Supreme Court ruled that it would be pointless to seek proof of Wills with mathematical certainty, just as it would be in the case of proof of other documents. The standard test for the satisfaction of the wise mind in such cases would be used. In the same case, however, the Supreme Court further held that one significant factor that sets a Will apart from other documents is the non-availability of the signatory. It also noted that in the case of a Will, other factors such as surrounding circumstances, including the existence of suspicious circumstances, if any, should be explicitly explained and refuted by the propounder.
ADMINISTRATION OF WILL – CODICIL
Any form of addition to a will is called a codicil. The terms of the will may be modified, added to, or subtracted from by codicils. They can be used to maintain the validity and contemporaneity of a will and testament. If a will has any major alterations, a codicil can be utilized to add, eliminate, or modify certain clauses. It must be signed and witnessed in the same manner as the will itself, and it must be carried out according to the same procedures. Rather of starting from scratch when someone wants to make a few minor adjustments to their will, a codicil is usually employed[7].
CONCLUSION
It is simpler for a person to split their valuables and property and to organize their finances and estate appropriately when they have a will. It has proven to be a crucial tool for preventing family conflicts and ensuring that the testator’s desires are carried out. Making a will is a simple process that has many advantages for the individual. The testator’s legacy is protected by a will. To prevent future problems, one must therefore carefully draft their will, taking notice of all applicable laws and important components. However, the will can also be amended by the use of codicil.
[1] https://www.legal500.com/developments/thought-leadership/wills-in-india-essential-elements-and-legal-requirements/.
[2] https://www.bcasonline.org/BCAJ%20Golden%20Content%202018-19/Articles/Dec%202018/16%20-%2018%20Testamentary%20Succession%20M%20L%20Bhakta.pdf.
[3] Madhukar vs. Tarabai (2002) 2SCC 85.
[4] Ishwardeo vs. Kamta Devi AIR(1954) SC 280.
[5] Purnima Devi vs. Khagendra Narayan Deb AIR(1962) SC 56.
[6] Venkatachala Iyengar vs. Trimmajamma AIR (1959) SC 443.
[7] https://www.legalzoom.com/articles/how-to-write-a-codicil-to-a-will.