When it comes to drafting a Will, the complexity of legal terminology can often be daunting.

This comprehensive guide aims to demystify the legal jargon commonly encountered in Wills, making it easier for individuals to understand their own estate planning documents or those of a loved one.

The article discusses the key terms and phrases used in the context of Wills under the Indian legal system, particularly referencing the Indian Succession Act.

Read more: How To Write An Indisputable Will

Key Terms In Will Drafting

1. Valid Will

A legal document that has been executed according to the requirements set forth under the Indian Succession Act, which includes the presence of the Testator’s signature and at least two Witnesses. It is important to note here that in the absence of a legal Will, the Testator's assets will go to the legal heirs as defined by their religious succession laws.

2. Testamentary Capacity

Refers to the mental ability of a person to understand the nature of the testamentary act, the extent of property being disposed of, and the claims of those who might be expected to benefit from the Will.

3. Probate Court

A judicial body that has the authority to handle matters pertaining to Wills and estates, including the validation of Wills and the granting of probate or administration.

4. Mirror Wills and Joint Wills

• Mirror Wills: Two or more Wills that are made by individuals, typically spouses, agreeing to confer reciprocal benefits on each other. These are separate Wills and may benefit the surviving spouse.
• Joint Wills: A single Will created by two or more persons that is intended to take effect after the death of all involved parties. Such Wills are usually created by family members, specifically spouses.

5. Privileged and Unprivileged Wills

• Privileged Wills: Such Wills can be made by any soldier, airman, navy personnel, or mariner who is engaged in actual warfare. This type of Will does not require formalities like Witnesses and can even be entirely oral.
• Unprivileged Wills: Wills made by any person not covered under the privileged category must adhere to specific formalities, including being in written form and signed by two Witnesses.

6. Holographic Wills

Entirely written, dated, and signed in the handwriting of the Testator. They are considered a valid form of an unprivileged Will if they meet all other legal requirements.

7. Probate Process

The official proving of a Will where the appointed probate court verifies the authenticity of the Will and grants permission to execute the Testator's wishes as stated in the Will.

8. Executor

The person appointed by the Testator to execute the Will and manage estate affairs after their death. The Executor plays a crucial role in ensuring that the estate is distributed as the Testator desired.

9. Codicil

An amendment or addition to an existing Will. To be valid, it must be executed with the same formalities as a Will.

Read more: Wills In India - Myths vs Facts

Important Clauses In Wills

Residuary Clause

Deals with the remainder of the estate after specific gifts are made. It specifies who should receive the rest of the estate once all debts, taxes, expenses, and specific bequests have been cleared.

Guardianship Clause

Important for Testators with minor children, this clause specifies the appointed Guardian(s) in the event of the Testator’s death before the children reach adulthood.

Revocation Clause

States that any Wills or codicils previously made are revoked, ensuring that only the most recent Will is considered valid.

Legal Requirements For Wills

In India, the legality and enforceability of Wills are governed by specific criteria that ensure both the authenticity of the document and the intent of the Testator.

Understanding these legal requirements is crucial for anyone involved in the drafting or execution of a Will.

Here's an expanded look at the essential legal stipulations for creating a valid Will in India:

1. Written Instructions

For a Will to be considered legally binding, it generally must be written. This can be done using plain paper; there is no need for any special form. The Will should clearly articulate the distribution of the testator’s assets and any other wishes they might have.

While most Wills require written form to be recognised legally, the Indian Succession Act does provide for 'privileged Wills'—typically used by military personnel engaged in action or on a military expedition. These privileged Wills can be oral or written under less formal conditions but are still legally binding.

2. Witnesses

The requirement for Witnesses is crucial to the process of validating a Will. Unprivileged Wills must be signed by the Testator in the presence of two or more Witnesses.

These Witnesses must be present simultaneously to witness the signing of the Will and must also attest to the Will with their signatures.

It's important that these Witnesses are impartial; they should not be Beneficiaries under the Will to avoid any appearance of undue influence or conflict of interest.

3. Voluntary Execution

It must be clear that the Testator has signed the Will voluntarily and without any coercion or undue influence from others.

This ensures that the Testator's intentions are genuinely reflected in the Will and that they were not pressured into distributing their assets in a particular way that does not align with their true desires.

4. Mental Capacity

For a Will to be valid, the Testator must be of sound mind at the time of its creation. This means they must fully understand the nature of the document they are signing, the extent and value of the assets they are disposing of, and the implications of their decisions on the distribution of their estate.

The Testator must also understand the identity of the Beneficiaries and how the Will affects these parties.

If there are concerns or disputes regarding the Testator's mental capacity, the Will could be contested in probate court, potentially leading to a lengthy and costly legal battle.

The Bottom Line: How Yellow Can Help

Given the potential complexities and legal nuances involved in drafting a Will, it is advisable for individuals to consult with legal experts—such as estate planning attorneys—to ensure that all aspects of the Will comply with current legal standards and accurately reflect the Testator's intentions.

Legal professionals can provide crucial guidance on fulfilling all required legal formalities and offer advice on the best ways to structure an entire Will to safeguard the Testator's wishes and ensure smooth succession planning.

At Yellow, it is our mission to empower all Indian to create their Wills. With the Yellow app and webapp, you can create a valid Will from the comfort of your own home. Our team of legal experts have more than 50 years of combined experience and can guide you at every step along the way.

‍