Types of Wills in India

MAN – TESTATOR
WOMEN – TESTATRIX

Q. WHAT IS WILL?

A will is a legal document that outlines how your belongings will be dispersed after your passing and can name guardians for minor children. A will is helpful because it enables one to clearly state their goals. It’s crucial to work carefully with a professional to draught and modify the will. In the absence of a will, your belongings are distributed to your successors in accordance with the laws of the country you are a citizen of. This is referred to as passing away intestate, and the agreement that follows may not necessarily have the affects you would like for your family. By having documents created that adhere to your choices, you may prevent this.

Q. WHAT IS PROBATE IN WILL AND WHY IT IS NECESSARY?

Probate is defined under the Indian Succession act, 1925 as a copy of the will that has been witnessed by the court’s seal and has been granted administration of the testator’s estate.

1. Privileged Wills and Unprivileged Will : According to the Indian Succession Act of 1925, certain privileges are awarded to any soldier, airman, or mariner who is at sea and taking part in an expedition or actively engaged in actual conflict. These were put into place with the difficult circumstances a soldier encounters while on duty in mind. These powers are indicated in Section 66 of the Indian Succession Act, and such wills are referred to as Privileged Wills in Section 65 of the Indian Succession Act,
2. Some of the most well-known examples of such privileges include provisions that allowed verbal agreements made in front of witnesses to be taken into account as genuine wills and provisions that allow written instructions to be taken into consideration as legal wills in the event that a soldier passes away.

Unprivileged Wills are any types of will that are made by the general public and are not privileged wills. They must meet a number of requirements in order to be regarded as legally valid and Section 63 of the Act mentions these criteria.

2. Contingent or Conditional Will:  Such a Will is not effective unless certain conditions are satisfied or a situation arises. It might be a reference to something that will happen later, like getting older. In other words, if the contingency does not occur or if the conditions are not met, the will is held to be legally null. There are several reasons why these wills are written. The testator can specify in his will that his property will be safely appropriated in the case of his passing while travelling abroad or that he will encourage a loved one to carry out good actions. If a will cannot contain any provision that is, by definition, that will be illegal or unenforceable.
3. Joint Will:
   When two or more persons concur, they can make a joint will, which is a testamentary document. Another option is to create a combined will that will take effect after the passing of each testator. While all testators are still living, one testator cannot unilaterally revoke a joint will. They would need the consent of the other testators to revoke their joint will. In the event that all other testators have passed away, the sole remaining testator may only revoke the will on their own. Typically, married couples make these with the intention of leaving their assets to the surviving spouse in the event that one of them passes away.
4. Concurrent Will:
   Typically, just one will is written for each testator. The testator may, however, make further wills to dispose of the properties if they so choose or if it would be more convenient. Depending on his preferences or for convenience, the testator may write different wills for the property spread out over different locations. They are statements that cover the only testator’s affairs.
5. Mutual Will
   Two parties who agree on specified criteria and conditions can create a mutual will. Mutual wills, also known as reciprocal wills, are separate testaments in which the testators designate one another as their legatees and bestow benefits upon one another in exchange. Such wills are frequently written by married couples who had children from a previous marriage in order to safeguard the best interests of those children. The surviving partner would continue be bound by the terms and conditions of the will after the passing of the first partner. They also help to ensure that the property will belong to the deceased person’s children and not their new spouse or any other person in the event that either partner remarries.

6. Duplicate Will:
   A copy of the original will is a duplicate will. They are created for security reasons and to ensure the proper execution of the will upon death. The original copy is normally retained with the testator, executor, or trustee, and the other duplicate is held in protective custody, such a bank locker. The duplicate must be attested in accordance with Section 63 of the Indian Succession Act of 1925 in the same manner as the original will. Until the original will is no longer around, they constitute a convincing and reliable indication of the testamentary intentions. Otherwise, questions regarding the replica’s veracity can arise.
7. Holograph Will:
   Wills that have been handwritten by the testator themselves are known as holographs. With such a will, it is more important to ensure that it is highly legitimate, properly, and legally performed. Although a witness is not required to certify to it, it must be written by hand. They were totally handwritten by the testator himself, thus there is a good chance that they are regular and executed. According to several legal decisions, “if there are few doubtful circumstances connected to a will, very little proof will be required to establish the validity of a will’s execution and attestation.”
8. Sham Will:
   These wills are written with ulterior motives in mind, frequently immoral ones such as claiming property that is not theirs or deceiving someone. Any will must include the testator’s intention, which is essential. Sham wills are written under duress or coercion, robbing the testator of their right to free will. These wills also include the paperwork needed to implement the collateral purpose correctly and not in accordance with testamentary
   operations.

PROCEDURE FOR PROBATE OF WILL

1. IN CIVIL JUDGE JURISDICTION
2. NOTICE TO THE OPPOSITE PARTY (TO LEGAL HIERS) AND PUBLIC
   NOTICE
3. GET NOC FROM LEGAL HIERS
4. IF GET NOC THEN JUDGE WILL PROBATE THE WILL AND IF YOU DO
   NOT GET NOC THEN CASE WILL BE CONTESTED AND BASED ON THE
   EVIDENCE AND CIRCUSTANCES JUDGEMENT WILL BE DELIVERED.