Writing a will is considered to be a huge hassle as a result of which many people prefer to die intestate. However it is of immense importance. A will or testament is a legal declaration which authorizes the testator to name the people who would inherit his estate after his death. He can specify his intentions which he wishes to be fulfilled after his death and clarify all confusion regarding the distribution of his property. A will once made can be revoked by the testator only during his lifetime. It cannot be changed or disregarded after his death and thus making a will is the best way to dispose off one’s property. However one thing has to be kept in mind. The will can, however, be made only for self-acquired properties and not for ancestral properties. Even future properties can be bequeathed which accrue to the testator after the execution of the Will. The Will takes effect after the death of the testator and can be revoked only during his lifetime. As per Section 118 of Succession Act, the testator cannot bequeath his estate to a charity leaving his family in a state of poverty and thus depriving the family, without giving very good grounds for such disinheritance that would stand the scrutiny of a court of law.
A person will be stated to have died intestate if the individual passed away without having executed a will. In such cases, the distribution of their properties and assets will be governed by the personal law of succession and inheritance. The absence of a valid will leaves the determination of the heirs and the allocation of the deceased person’s estate to the legal framework established by the applicable succession laws.
On the other hand, testamentary succession, specifically, pertains to the succession of a person’s property after their death in accordance with the provisions outlined in a legally executed will. This type of succession occurs when the deceased individual has made explicit provisions for the distribution of their estate through a valid will, expressing their wishes and instructions for the disposal of their assets.
A codicil is a legal document that serves as an amendment or addition to an existing will. It allows the testator (the person who made the will) to make changes, modifications, or revocations to certain provisions of the original will without requiring a complete rewrite of the entire document.
Though a Will is not required to be registered and can be drawn on plain paper also, it is desirable that the Will be registered. The registration can be done with the Registrar where the testator resides. The Will can be registered during the life of the testator or by the executor or legatee after the death of the testator. Registration of the Will ensures about the authenticity of the Will as it is established and allegations of making the Will under duress can be deflected.
If the first Will is registered and subsequent ones are not, it may create confusion and potential claims based on the registered Will. To avoid such complications, it is advisable to register any subsequent Codicil or Will, especially if the first Will is registered.
A Will can be enforced by the executor. He is the safe-keeper of the rights of the beneficiaries under the Will. The provision of the Indian Succession Act makes it mandatory for enforcement of rights under the Will only by way of a Probate. Probate means certifying of the Will by a court of competent jurisdiction. The office of the Sub Registrar may demand Probate or Letters of Administration when transferring property, and banks often require the production of a Probated Will. The office of the Sub Registrar may demand Probate when transferring property, and banks often require the production of a Probated Will.
A will is valid for unlimited period after the death of the testator and there is no bar on its enforcement. The beneficiary in whose name the will is written gets an indefinite right to get it executed anytime after the death of the testator as the will remains valid for unlimited period.
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