A will is an important document inasmuch as it disturbs the natural line of succession and gives expression to the testator's (will maker's) wish of distributing his estate in the manner stipulated by him.
However, there are certain misconceptions or myths about the making and execution of wills which act as a deterrent for common people. Some of these are dealt with below:
• Will must be made on stamp paper: It is not mandatory to do so. A will can be made on ordinary paper and does not require the fixing of any court fee unless it is to be registered.
• Will must be registered: Though it is not obligatory, registration is desirable since it obviates the necessity of proving the genuineness of the will later on.
• Will must be typed out: A will can be wholly in the handwriting of the testator. Such wills are known as holograph wills.
• Will can be made orally: Oral wills or nuncupative wills are now abolished. These are permitted only for soldiers employed in actual warfare, or an airman or a mariner at sea.
• Will cannot be for the benefit of a minor: A will can be made for the benefit of a minor. However, a guardian would also have to be appointed to preserve the estate till the minor attains adulthood.
• Will must be unconditional: The testator can include conditions in the will and also provide that a certain beneficiary shall enjoin the property only till his lifetime and thereafter the property shall be bequeathed to someone else. In such case the first beneficiary only gets a life interest.
• Will must only be in respect of immoveable property: Not only immovable property but also shares, debentures, bank accounts, etc can be distributed by the testator through his will.
• The executor cannot be the beneficiary: The law does not prevent the executor from being even the sole beneficiary of the testator’s property. However, the exclusion of the other natural heirs from the estate could make the will disputed.
• The will must only be in favour of family members: The testator has the capacity to bequeath his entire property to the complete exclusion of his natural legal heirs. But again it could lead to disputes.
• The will must be in respect of the complete estate of the testator: The testator can bequeath a part of his estate to a named beneficiary leaving the other part of the estate to devolve upon his heirs by the natural order of succession.
• The will once made cannot be revoked: A will, even if it is registered, can always be revoked, altered or amended by another legal instrument known as a codicil. The manner of execution and effect of a codicil is the same as that of a will.
• A will can be in respect of ancestral property: A testator has no right to make a will with respect to the coparcenary or ancestral property because that property has passed by survivorship.
(By Anil Srivastava, Advocate, Supreme Court)
