When it comes to safeguarding your legacy, creating a will is one of the most important steps you can take. More than just distributing your assets—creating a will is about ensuring that your wishes are respected long after you’re gone.
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In India, the process of making a will is guided by the Indian Succession Act, 1925, which lays out legal rulings around your will. A particularly important part of the Indian Succession Act, 1925 for the creation of a will is Section 63.
It covers the formalities that make your will legally binding. Whether you’re just starting to think about creating your will or are finalising it, understanding this section is key to making sure your last wishes are honoured.
What is Section 63 of the Indian Succession Act for Will Creation?
Section 63 of the Indian Succession Act, 1925, outlines the rules for the execution of an unprivileged will. An unprivileged will is a standard will made by civilians, as opposed to privileged wills, which are made by soldiers, airmen, or mariners under specific circumstances. The section sets out the essential legal requirements that must be fulfilled while creating a will to be considered valid under Indian law.
Key Elements of Section 63
Section 63 specifies three main requirements for the execution of an unprivileged will:
- Signature by the Testator:
- The first requirement under Section 63 is that the Testor (the person making the will) must sign the will or direct someone else to sign it in his presence. This ensures that while creating a will, the document genuinely reflects the testator’s wishes and that there is clear evidence of their consent to the contents of the will.
- The signature or mark of the testator must be placed in a manner that clearly indicates the testator’s intention to give effect to the document as their will. This means that the signature should be at the end of the document, where it naturally follows the testator’s declarations, to signify their approval of the entire content.
- Attestation by Witnesses:
- The second requirement is that the will must be attested by at least two witnesses. These witnesses must either witness the testator sign the will or see someone else sign it on the testator’s behalf in their presence and at their direction.
- Alternatively, the witnesses must have received a personal acknowledgment from the testator regarding their signature or mark on the will. This provision ensures that there are reliable and independent individuals who can confirm the authenticity of the will and the voluntary nature of the testator’s actions.
- Witnesses’ Signatures:
- Each of the witnesses must sign the will in the presence of the testator. However, it is not necessary for both witnesses to be present at the same time, nor is it required that they sign in the presence of each other. The key is that each witness signs the document after having witnessed the testator’s signature or having heard the testator acknowledge it.
Why Are These Requirements Important?
The formalities outlined in Section 63 are designed to prevent fraud and ensure that the will truly reflects the intentions of the testator. By requiring the testator’s signature and the attestation of witnesses, the law creates a system of checks and balances that protects the integrity of the will. These requirements also provide evidence in the event that the will is contested in court, helping to resolve disputes and confirm the testator’s true wishes.
- Protection Against Fraud and Coercion: The requirement for the testator’s signature ensures that the will is made with their full knowledge and consent. The presence of witnesses acts as a safeguard against undue influence, coercion, or fraud, as they can testify to the testator’s state of mind and the voluntary nature of their actions.
- Legal Validation: The formal execution of a will as per Section 63 provides it with legal standing. If a will is contested, the courts will look for compliance with these formalities to determine its validity. A will that meets the requirements of Section 63 is more likely to be upheld in court, providing peace of mind that the testator’s wishes will be respected.
- Clarity and Certainty: By following the procedures set out in Section 63, the testator ensures that there is no ambiguity about the will’s authenticity. The clear, deliberate act of signing and witnessing removes doubts about whether the document is genuine and whether the testator was fully aware of its contents.
Also read : 1finance.co.in/blog/essentials-importance-of-writing-a-will/
Practical Considerations for Will Creation
When creating a will, it’s important to ensure that all the formalities required by Section 63 are meticulously followed. Here are a few practical tips:
- Choose Reliable Witnesses: The witnesses to your will should be trustworthy individuals who are likely to be available to testify if the will is ever contested. Ideally, they should be younger than the testator and not beneficiaries under the will, to avoid potential conflicts of interest.
- Sign in the Correct Order: The testator should sign the will in the presence of the witnesses, and then the witnesses should sign in the presence of the testator. This sequence is important to maintain the integrity of the document.
- Ensure Clarity of Intent: Make sure that your signature is placed in a way that clearly indicates your approval of the entire document. Avoid any actions that could create doubt, such as signing only a portion of the document.
- Store the Will Safely: After execution, the will should be stored in a secure place where it can be easily found by the executor or family members after your death.
Conclusion
Section 63 of the Indian Succession Act, 1925, plays a vital role in ensuring that wills are created with the necessary legal safeguards to protect the testator’s intentions. By understanding and adhering to these requirements, individuals can create a will that is not only valid but also reflects their true wishes regarding the distribution of their assets. Following the formalities of will creation as outlined in Section 63 provides peace of mind, knowing that your legacy will be honoured in accordance with your desires.
