In India, wills are essential legal documents that allow individuals to specify how their assets should be distributed after their death. The Indian Succession Act of 1925 dictated the creation and execution of wills, and it recognised several types of wills. Each type serves specific purposes and comes with its own set of legal requirements and implications. Understanding the different types of wills available in India can help you gain clarity while creating a will.
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Unprivileged Will
An unprivileged will is the most common type of will in India. It is made by any person who is not a soldier, sailor, or airman in active service. Unprivileged wills are governed by strict legal formalities as outlined in Section 63 of the Indian Succession Act of 1925.
Key features:
– The will must be in writing.
– The testator (the person making the will) must sign the will or affix their mark. If they cannot sign, another person can do so on their behalf in their presence and by their direction.
– The will must be attested by at least two witnesses, who must see the testator sign the will or acknowledge their signature.
Example
A person who wishes to distribute their property among their children and appoint a guardian for their minor child after their death would create an unprivileged will.
Privileged Will
A privileged will is a special type of will that can be made by soldiers, sailors, and airmen who are employed in an expedition or engaged in actual warfare or mariners at sea. Privileged wills are subject to more relaxed legal requirements due to the circumstances under which they are made.
Key Features:
– Unlike unprivileged wills, privileged wills can be either oral or written.
– If the will is written, it does not need to be signed by the testator or attested by witnesses. If it is oral, it must be made in the presence of two witnesses.
– The relaxed requirements reflect the potentially hazardous situations in which these individuals might find themselves, where the formal execution of a will might not be feasible.
Example
A soldier on active duty who wishes to leave instructions for the distribution of their belongings in the event of their death may make a privileged will.
Holographic Will
– A holographic will is entirely handwritten and signed by the testator. – – While not explicitly mentioned in the Indian Succession Act, holographic wills are recognised in India under common law if they meet the necessary legal requirements.
Key Features:
– The will must be entirely in the handwriting of the testator.
– The testator must sign the will.
– To be legally valid, the will should still be attested by at least two witnesses, similar to an unprivileged will.
Example
A person may write a holographic will if they wish to quickly record their last wishes without the formalities of typing and printing, especially in situations where they cannot access legal assistance immediately.
Joint Will
A joint will is a single document created by two or more persons, usually spouses, who agree to distribute their estates in a particular manner. A joint will becomes irrevocable after the death of one of the testators unless both parties have agreed otherwise.
Key Features:
– Both parties express their wishes in a single document.
– The will reflects the mutual agreement of both testators regarding the distribution of their estates.
– After the death of one testator, the surviving testator generally cannot change the will.
Example
A married couple who wants to ensure that their assets are passed on to their children in a specific way after their deaths may create a joint will.
Mutual Will
Mutual wills are separate but identical wills made by two or more persons, often spouses, who agree to bequeath their property to each other or to a third party in a particular way. These wills are usually binding on the surviving testator(s), meaning they cannot be altered after the death of one of the parties.
Key Features:
– Each person creates a separate will, but the content is usually identical.
– The wills are binding on the surviving testator(s), meaning they cannot be changed once one of the testators has died.
– The mutual wills often contain specific bequests that reflect the agreement between the parties.
Example
A husband and wife who want to ensure that their property is passed on to their children in a specific manner after their deaths may create mutual wills.
Living Will
A living will, also known as an advance healthcare directive, is not a will in the traditional sense of distributing assets after death. Instead, it is a document that outlines the testator’s wishes regarding medical treatment and end-of-life care should they become incapacitated and unable to communicate their decisions.
Key Features:
– These will specify what medical treatments the testator does or does not want in the event they cannot make decisions for themselves.
– Unlike other wills, a living will does not deal with the distribution of assets.
– The legal standing of living wills in India was affirmed by the Supreme Court in 2018, recognising the right to die with dignity under Article 21 of the Constitution of India.
Example
A person with a terminal illness might create a living will to specify that they do not wish to be kept on life support if there is no hope of recovery.
Conditional or Contingent Will
A conditional or contingent will is a type of will that only takes effect if a specific condition or event occurs. If the condition is not met, the will is not executed.
Key Features:
– The will contains a specific clause that must be fulfilled for the will to be valid.
– If the specified event or condition does not occur, the will does not come into effect.
– Conditional wills are recognised under Indian law, but the condition must be clearly stated and lawful.
Example
A person might create a conditional will stating that their assets should be distributed to their children only if they die in a specific accident or event.
Conclusion
Understanding the different types of wills in India is crucial for effective estate planning. Each type of will serves specific purposes and comes with its own set of legal requirements. Whether it’s the standard unprivileged will, the special privileged will for those in active service, or a unique form like a living will or mutual will, choosing the right type of will ensures that your assets are distributed according to your wishes and that your loved ones are cared for after your death. Proper legal advice should always be sought when drafting a will to ensure that it meets all legal formalities and accurately reflects your intentions.
