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Will Preparation - Why being fair to children is important

Despite Will being a legal document, no prescribed format in the law decides how to make it. Here is a detailed guide on preparation of Will, its importance and rights of children to challenge a Will.

What is will

A legal declaration on paper of someone's distribution of his assets after his/her death is called as will. The document is unilateral and takes effect only after the person's death who made the will. It is a decision that how a person's wealth, property and wealth are distributed after his/her death. Despite will being a legal document, no prescribed format in the law decides how to make it. 

It can be in any form, handwritten, typed, or stamped paper.

Types of will

According to the India Succession Act, there are two wills, Privileged and Unprivileged will. 

  • Privileged wills are those wills that are made by soldiers who are employed in an expedition or a war-like situation or an airman or mariner. These types of will do not have many legal formalities, and they can be made in writing or orally. 
  • Unprivileged wills are all other kinds of wills. In the execution of these wills, many formalities need to be carried out, from verification of signatures to attestation of witnesses.

Characteristics of a will

  • The testator should be willing that the will should take effect only after his death.
  • The will must involve the property details and manner of its disposal.
  • The testator of a will can revoke or alter his/her will during his lifetime.

Who can make a will

According to the Indian Succession Act, 1925, Section 59, there are two conditions for a person to make a will, i.e.

  • A person making his will be must be above 21 years of age
  • The person should be of sound mind.

There exists a clause for a person of unsound mind that he/she can make a will during the interval of the soundness of his/her mind. The section also prohibits making a Will in a state of intoxication or illness, which makes the testator incapable of understanding the consequences of his/her act.

Making of a will 

Here is a quick guide to making will:

  • Make sure you fall in the criteria of essentials of a will as mentioned above.
  • Though a will can be made by a testator himself/herself, it is always a better way to consult a lawyer before making a will.
  • The execution of a will is only possible after the signature of a testator is done in the presence of two witnesses and their signature.
  • A registered and stamped will is always a better way to make it, as it ensures the execution legally.

Execution of a will

For starting execution of a will, it is compulsory to obtain a Probate in India from the court. Section 2(f)1 of the Indian Succession Act, 1925 explains the meaning of a Probate of will as a legal certification of the genuineness of a will. It is obtained by filing a petition in court attaching the details of the property and a copy of the will with it. It is mandatory to expressly pray to the court to grant probate so that the intention of the testator could be carried out.

Essential elements of a will

Here is a list of the details that should be included in a will:

  1. Testator's Details:

A will should have all the identification-related details of the testator like name, age, address etc. so that at the time of its execution, it is easy to identify him/her.

  1. Declaration:

One of the essential elements of a will is that the testator should declare himself/herself as a sound mind and free from all types of concerns while drafting the will.

  1. Beneficiary details:

A will should have all the identification-related details of the beneficiary like name, age, address, etc. At the time of its execution, it is easy to identify him/her.

  1. Appointing an executor:

It is vital to appoint an executor for a will so that he/she will ensure that it is carried out following the directions provided by the testator. The identification details like name, age, address, etc., should also be specified.

  1. Details of property and assets:

In a will, it is crucial to list out all the details of the properties and assets that the testator has. Also, he/she should specify the name of properties that he wishes to distribute after his/her death.

  1. Division of share:

It is mandatory to mention the share of each beneficiary in the division of property, and the list of the distributive assets and property should be mentioned with all the detail in the will.

  1. Witness:

As mentioned before in the article, the execution of a will is only possible after the signature of a testator is done in the presence of two witnesses and their signature. The witnesses should only verify that the testator's signature has been done in front of them. However, it is not a compulsion for them to know the details of the will.

  1. Signature:

After the last statement of the will, the original signature of the testator with the date should be there in the will.

Acts Allowing transfer of property through a will:

In the Indian legal system, the laws governing the transfer of property through a will are under these legislations:

  • The Indian Succession Act, 1925
  • The Code of Civil Procedure, 1908
  • The Indian Registration Act, 1908
  • The Indian Stamp Act, 1899

Grounds for challenging a will

Here are the grounds under which a will can be challenged

  • Being under any undue influence, fraud or coercion

A will can be challenged on the ground of claiming the testator was either under any undue influence, fraud or coercion. It shows that the will was not created with a clear intention and free mind.

  • A suspicious nature being present

A will can be challenged on the ground that there may be a presence of any elements that could give a reasonable understanding that there was some misdemeanour with it.

  • Testator not having testamentary intention or capacity

A will can be challenged on the ground that the testator at the time of making the will did not have testamentary intention or capacity. This means he/she must not be of sound or reasonable mind while making the will. The intention of the will may be depicted.

  • No proper execution

A will can be challenged if the signatures of the witnesses or the testator are missing or doesn't match their original ones.

  • Absence of knowledge

If the testator has no knowledge of signing a will, then it can be a ground for challenging its validity.

Procedure of challenging a will

Here is the step by step guide to challenging a will based on above-mentioned grounds:

  • File the suit in a civil court.
  • Issue a Vakalatnama that makes your lawyer, your representative, so that he can pay the required court fee.
  • The written statement needs to be filed by the other party to initiate the court proceedings.
  • Present the required document like legal heir certificate, address proof, documents supporting your ground etc., to the court.

Challenging a will after probate

Here are specific grounds under which a will can be challenged even after probate:

  • Fraudulent grant of probate by concealing facts or deceiving the court and the testator
  • Probate granted by the court presenting misrepresentation of facts
  • The court proceedings to give probate was having any defect
  • The grant of probate is useless because of specific circumstantial challenges

Waiver of the right challenge a Will

A waiver of the right to challenge a will is possible only by entering a contract with all vested interests members. But this condition requires an intention of relinquishment of their right. It should also have a conscious abandonment of the right and an explicit intention of not exercising it and complete information of the right waiver.


Intestate succession in the absence of a will

Instate succession in India only occurs if a person passes away without making a will. In our country, there are two ways to deal with inheritance. They are:

  • Inheritance under personal (religious) laws
  • Under the Indian Succession Act, 1925

The Hindu Succession Act, 1956 and the Muslim Personal Laws (Shariat) Application Act are the personal laws applicable in India.

Revocation of a will

The meaning of revocation of a will is a cancellation of it. Here are the ways by which it can be done:

  • A will can be presumed to be destroyed or damaged if it is last seen in possession of the testator and has not been found after his/her death.
  • If there is the execution of a new bill made by the testator, the previous will automatically be revoked.
  • If the testator himself/herself declares the revocation of a will with the intention to make a new one.
  • Damaging or destroying the will by the testator by burning, tearing, or other ways. This shows the testator's willingness of destroying the will through action. 
  • Existing of an unprivileged will upon a privileged one. This shows that the unprivileged will is made later, and then it shall overrule the privileged will. This is because it is believed that will is made in a situation where the person may or may not survive.
  • When the testator gets married after making a will, the old will be automatically revoked. This is a principle under the Indian Succession Act, 1925, which is made to safeguard the interests of all the relevant parties.

While making a will why being fair to children is important

Making a will and keeping its all clause in mind is extremely important for us. Especially if you have any dependents in the family, specifically the children. Nobody knows what circumstances time can show us; it's always better to be prepared and make our dependents prepared.

Here are the benefits of making a will on time:

  • It decides that who receives your property after your death. The court's decision will only be according to the law that may not always meet your wish. By making a will, you will be ensured that your assets and property is received by your loved ones only.
  • After your death, it manages your property according to your wish. The executor will be in charge of carrying out all your property affairs according to your will.
  • A will can also appoint a guardian for your children after your death. It will ensure that they are safe, taken care of, getting g whatever they need, and accessing all their rights.
  • It reduces legal complications and reduces chances of your loved ones fighting with each other or harassing each other for your property.
  • Making a will is the best way to ensure your dependents' financial safety and security after your death.
  • Making a will is also an excellent way of protecting your business. Without a will, the court will hand over your business only to the beneficiary, not to a deserving one. But deciding on it priorly, you can make sure the business is being handed over to the right hands to take it to better heights.

Will getting challenged when it is distributed in an unfair manner

There is also an option if by any means a will seem to be unfair to its recipient. It can be claimed that a close relative was not provided for adequately in the will. Under the Hindu Succession Act, the head of the family is entitled to provide sufficiently for maintenance for certain family members specified in the Act.

How to contest a will

Here are specific ways to challenge a will in the Court of law:

  • The Law Reform (Testamentary Promises) Act, 1949
  • The Property (Relationships) Act, 1976
  • The Family Protection Act, 1955
  • By confronting the validity of the will

A close family member can challenge a will in the Family Court or High Court. According to the Family Protection Act, a husband, wife, child, grandchild, dependent step-child, and parent can move to the Court for the same if reliant on the deceased. The Court will decide whether the testator has failed or fulfilled his/her duty to provide appropriate support to the family members.

People who are not close relatives can challenge a will under the Property (Relationships) Act, 1976. However, satisfactory proofs are required for the promise for property distribution made by the will's testator. The Act also gives a right of having equal sharing rules as close relatives to the legal spouse or de facto spouse.

Reasons not mentioned in the Will for unequal distribution

Though a will is primarily a discretion of the testator, and the Court favours the deceased unless he/she hasn't done something unfair to its close relatives. But when talking about children, giving each child an equal piece of property is not always correct.

If any of the children are unable to take care of himself/herself, the deceased can leave most of his/her property for his/her care through a special need trust or to a suitable person. A disabled child or dependent need more income support to meet the ongoing medical needs and basic living expenses. In such cases, an unequal distribution can be considered fair by Courts if challenged. 

Excluding a child from the Will

For a minor child: Under Section 125 of The Code of Criminal Procedure, 1973, a man is bound to provide maintenance to a legitimate or illegitimate minor child. Also, a father is bound to maintain a minor child if they are a physically or a mentally disabled child. A father can be sued in Court if he fails to maintain his children or abandon them. The punishment is fine or imprisonment or both.

For a major child: A father has the right to disinherit his son only from his self-acquired property, not from his ancestral property. A self-acquired property is one self-made by own funds and resources, not inherited in any way. A property acquired through a relative, a gift, or a deed can also be categorised as self-acquired. A property acquired from a common male ancestor, like father, grandfather or great grandfather, is categorised as ancestral property.

Contribution of a son towards father's property

A son can challenge his father's Will if he is able to prove that his resources or funds have been used by the father to build his (the father's) self-acquired property. Also, the son will inherit a father's self-acquired property if the father has not created a will.

A 'wayward' child 

Parents are not liable to pay their child's debts or loans, so it is not a compulsion to give an extra share to a child in debt. However, they cannot use any frivolous reasons to disinherit them.

By all means, making a will is always a win-win situation. Since you don't have to wait to make it once you reach 21 years of age, it is advised to make a will and review it from time to time. 

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