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Tuesday, 26 July 2011

Testementary Wills

A ‘will’ is a document in which a person prescribes the procedure for the management and distribution of his property (estate) after his/her death.

Purpose of a will:
  1. A ‘will’ enables a person to distribute his property among his heirs/ successors rather than leaving such distribution to state laws of descent and distribution.
  2. A will protects the right of a person to choose a suitable individual to serve as guardian to bring up his young children in the event of his death.
  3. A will enables a person (testator) to decide a suitable individual to serve as executor of his estate and distribute his/her property fairly to the beneficiaries.

Importance of a will
In the absence of a ‘will’, a person owning property is said to have died ‘ intestate’. His /her property is then distributed among his heirs/successors according to the laws of ‘Descent and Distribution’ of the state in which the person resided.

Difference between a ‘will’ and a ‘testament’
An instrument disposing of personal property (movable assets) is called a ‘testament’ while a ‘will’ is a legal document providing for distribution of real property (immovable assets).In course of time, the distinction disappeared and at present, a ‘will’ sometimes called ‘last will and testament’ disposes of both personal and real properties.

Essential conditions of a ‘will’
To be a legally valid document, a ‘will’ has to fulfill the following conditions viz.,
  1. The testator must be competent in the sense that he is of sound mind and requisite age at the time he makes the ‘will’ and not at the date/time of his death.
  2. A ‘will’ must be in writing and signed by the testator.
  3. A ‘will’ must have two witnesses, who can attest that the testator was competent at the time, the will was made. It is desirable that the witness is a person who does not have a financial interest in the will.
  4. In order to be admitted to probate, it should be clear that the testator acted freely in executing the ‘will’. A ‘will’ executed as a result of undue influence, fraud or mistake can be declared completely or partially void during probate proceedings.
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