Estate Planning & Succession Series
Series 1 | Article 3
This article covers the fundamentals of a Will and the terms often associated with Wills. This article also includes some do’s and don’ts in the making of a Will.
Will
A Will, is a testamentary document whereby a person, known as the Testator or Testatrix, records the manner in which their estate is to devolve (pass-on) and to whom (the beneficiaries) the estate must devolve, upon their death. The Indian Succession Act, 1925 (the “Act”) is the law that governs Wills and matters relating to it.
The Testator / Testatrix
Subject to restrictions under personal and / or religious laws, any person may create a Will as long as they are of sound mind, not a minor, and not coerced or under undue influence. The person who makes the Will is known as the Testator when referring to a man and Testatrix when referring to a woman.
Executor
When the Testator appoints a person or more than one person to administer their estate under the Will, the administrator/s is called the Executor. Appointing an executor is optional but advisable. As the Executor appointed under the Will has several obligations and powers under the Act, the person chosen must be capable of legally and effectively executing the Will. Some aspects one may consider while appointing an Executor are:
they must be young enough that they outlive the Testator;
they must be trustworthy and have a basic understanding of their responsibilities and obligations towards the estate and the beneficiaries; and
the Executor must have, at the least, a basic understanding of the administration of the estate.
It is advisable to appoint a substitute Executor if the primary Executor, at the relevant time, is unwilling or unable to act as an Executor.
Bequest or Legacy
The transfer of the estate to a person by way of a Will is known as a Bequest or Legacy. A person can only bequeath those assets they own or in which they have a right at the time of their death. It is important to note that specific provisions under the Act declares certain bequests void, illegal, or invalid. Therefore, it is essential to ensure that the Bequest should not be contrary to the provisions of the Act or the personal laws which may apply.
Beneficiary or Legatee
The person or persons, to whom the Testator or Testatrix has left a part or the whole of the estate (by way of a bequest) is known as the Beneficiary or Legatee of the estate. The Beneficiary or Legatee may be their legal heirs, loved ones, unrelated individuals, or a charitable trust named to receive the assets under the Will.
Executing (Signing & Witnessing) a Will
Executing a Will refers to the act of signing a Will in the presence of not less than two witnesses. The term Execution should not be confused with the term Executor, the executor being the person named in the Will responsible for the administration of the Will.
Executing a Will correctly is the most important aspect of making a valid Will. If a Will is not correctly executed, the Executor or Beneficiary is likely to face challenges in proving the Will as well as in administering it. There are specific provisions under the Act or general practice that you should consider while signing a Will:
While there is no provision under the Act to date the Will, it plays an important role in convincing a court of law of the authenticity of the Will. If there are two or more Wills it allows for a determination of the Will that was executed later.
A person must sign or affix an impression of their thumb (if they are unable to sign the Will) on the Will. The law provides that a person may even direct another person to sign the Will for them, in their presence and in the presence of witnesses. However, this is quite unusual and we do not recommend it in ordinary circumstances.
The signature or thumb impression, or the signature of the person signing on and for the Testator, should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will.
At least two witnesses must attest the Will. Each witness must see the Testator signing or affixing their mark on the Will. In case someone else is signing the Will for and on behalf of the Testator, it must be in the presence of the witnesses who must witness the direction by the Testator to such person signing on their behalf and the signature of the person. Each witness must sign the Will in the presence of the Testator. However, it isn't necessary that more than one witness be present simultaneously, and no particular form of attestation is required.
It is advisable that the witnesses to the Will are younger than the Testator to increase the likelihood that they outlive the Testator and are available to prove the Will.
Lastly, as per Section 67 of the Act, if a Beneficiary or the spouse of such Beneficiary under the Will is a witness, the Bequest or Legacy to that Beneficiary or their spouse will be void (invalid), while the Will will remain valid. Thus, the Beneficiary will lose their Bequest. Therefore, a person must not make a Beneficiary or their spouse a witness to the Will.
In the following articles, I will write about each of these terms, including the enforcement of a Will and related issues and challenges.
About the Author
Rashmi Shah has been with MZD Legal Consultancy since 2019 and has been practicing law since 2014. Rashmi is a part of the Estate Planning, Succession, and Real Estate practices at the firm. Rashmi also has an expertise in trade mark law and disputes. She can be contacted at rashmi@mzdlegal.in
About MZD Legal Consultancy
MZD Legal Consultancy is a boutique law firm in Mumbai, India. The firm was established in 2011 and comprises professionally qualified lawyers with varied levels of experience and expertise in specific practice areas. To know more, click here www.mzdlegal.in
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