A ‘Will’, often known as a testament is a legal document that expresses the intentions and desires of an individual regarding the distribution of his/her estates after death. Every Will has certain significant components that are necessary to constitute any valid Will. Without these components, the Will remains unenforceable and the intentions of the testator cannot be given effect accordingly. Thus, it becomes essential for every individual making a Will to know and understand these components. This article briefly enumerates such essential components of a Will for the benefit of the reader. Moving to understanding the essential components of a Will, the same can be briefly summarized as follows:
Information regarding the ‘Testator’ and the execution of the will
The person who provides an outline to his/her estate and his/her intentions regarding the estate is known as the Testator/Testatrix.
Every Will must contain basic identification information about the Testator/Testatrix such as his/her name, marital status, name and identification of legal heirs and such other details. This is done to leave no scope for error in identification of both, the Testator/Testatrix as well as the dependents.
Since the distribution of property after the death of an individual takes place in accordance with the personal laws by which he/she was governed at the time of his/her death, mentioning of the religion of the Testator/Testatrix is also crucial.
In order to author a Will an individual must be at-least 18 years old, mentally stable and free from coercion or undue influence.
The ‘Executor’
The Executor is closest to the position of the Testator/Testatrix of the Will.
The primary task of an Executor is to fulfill the intentions of the Testator/Testatrix in the exact manner specified so making him/her a legal representative of the Testator/Testatrix [1].
The roles and responsibilities of an Executor are allotted to him/her by the Testator/Testatrix in the Will. In the case of Rustam Ardeshir Gagrat[2],the Bombay High Court has highlighted this role by maintaining that only an Executor may be granted a ‘Probate’ and represent the estate of the deceased. In case there is no executor named in the Will then responsibilities of execution of the Will are assigned to an Administrator.
Attestation of a Will
To preserve the validity of a Will it is important that the execution is done without any mistakes.
According to the Indian Succession Act,1925, it is mandatory to have at least 2 individuals witness signing of the Will by the Testator/Testatrix [3]. Once the signature of the Testator/Testatrix is recorded, the signature of the witnesses is to be recorded as a confirmation to the authenticity of the Will.
Further, the Executor by all means can act as a witness of the Will[4]. However, if an inheritor under the Will becomes a witness to it, then the validity or appointment of such person will be void[5]. Thus, proper identification and categorization of attesting witnesses should be paid extra heed.
Specification for contingencies
Majority Testators/Testatrix have dependents or family members that rely on them for financial or physical care. It is very important to make provisions for at least the predictable contingencies of these dependents.
Dependents not only include minors, but they also include physically/mentally challenged individuals and elderly people; incapable of taking care of themselves.
For instance: It may be prudent to name two guardians for such dependents, one for physical guardianship and another as a financial custodian. Thus, contemplating contingencies and providing solutions for them before they arise becomes important as per the facts and estates of each individual.
Disposition and nature of assets
The most important part of any Will is the disposition or distribution of assets amongst the beneficiaries. Assets so also their bequests can be of multiple types.
Testators/Testatrix may choose the method of devolution of bequest such as through Trust Funds in case of a minor. Further, there may be hindrances in law with respect to the kind of property or right which may be bequeathed under a Will.
Thus, it is essential and beneficial that clear and specific instructions be laid down by the Will of the Testator/Testatrix to ensure its validity.
Therefore, the five above mentioned components become the foundation structure of any Will. Additionally, while the registration of a Will is optional, it is prudent for a Testator/Testatrix to register it to enhance the authenticity thereof. Unless a Will clearly and concisely provides for them, its validity may be a hassle for the legal heirs after the demise of the Testator/Testatrix. In order to avoid these repercussions and give due effect to the Will of the Testator/Testatrix it becomes crucial to be aware of these nitty gritties before drafting of a Will. Further, in order to obtain a sound Will, tailored to the needs of an individual’s estate legal counsel may be sought. This ensures a smoother enforcement process due to a strong, water tight and well executed Will.
[1] Indian Succession Act, § 211, No. 39, Acts of Parliament (1925).
[2] Re. Rustam Ardeshir Gagrat, 1989 SCC OnLine Bom 226.
[3] Indian Succession Act, § 63, No. 39, Acts of Parliament (1925).
[4] Indian Succession Act, § 68, No. 39, Acts of Parliament (1925).
[5] Indian Succession Act, § 67, No. 39, Acts of Parliament (1925).