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Execution of a Will

  By : , Kochi, India       23.9.2013         Phone:9656003929          Mail Now

A WILL is a legal document, which states the decision made by a person (testator), about the distribution of his personal property after his death. The testator can revoke, modify or substitute the will at any time during his lifetime by executing a new Will, but should make a declaration that he/she revokes all previous Wills if any.

Registration of WILL

In India, the WILL is not required to be compulsorily registered. Even if registered or unregistered, the WILL can be proved fully valued. However, a person who desire to register the WILL has to approach the Sub-registrar along with the witnesses who have signed as witnesses on the said WILL. The Sub-registrar would be as per the place of residence of the person executing the WILL. The Sub-registrar will verify their identity and attest the same. The executor of WILL as well as the attesting witnesses has to put their signatures and thumb impressions in the register maintained by the Sub-registrar. Normally, non-registration of a Will does not lead to any inference against the validity of a Will.

Requirements to execute a valid WILL

In executing a Will, there are certain requirements related to the writing, signing, witnessing, or attestation of the will. Every state requires the following rules:

∑ The testator has attained the age of eighteen years and is of sound mind ( Section 77 of the Succession Act 1965 sets out the capacity of persons to make a will.)
∑ The inclusion of a statement is that it is his own free and last will
∑ The will must be in writing on a plain paper or is typed or computer-printed, except in the case of a handwritten will
∑ The testator must sign or affix his mark at the end of the Will†
∑ The testator must sign and date the end of a typed or computer-printed will in ink
∑ The signature should match the name that appears in the will
∑ The Will must be dated with the date that it is signed and witnessed.
∑ The testatorís signature must be made in the presence of at least two witnesses†
∑ The witnesses should acknowledged that the testator sign the will in their presence
∑ The witnesses should be at least 18 years old; and must not be beneficiaries (people who will receive money, assets or anything else from the estate)in the will.
∑ The witnesses must also sign the will in the presence of the other witness.
∑ The will must have at least one provision that disposes of property or a provision that appoints a guardian for minor children

The Will that is not signed, dated and witnessed according to the rules is not legally valid. Such a Will can be legally challenged in the court of law.

If a person fails to make a Will or has died without a valid will, the property will be divided in accordance with the law of the land under Intestacy Provisions ("the law of descent and distribution" or "intestate succession statutes", refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.) On death, all the legal heirs have equal share in the property.

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