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:
- 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.
- 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.
- 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.,
- 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.
- A ‘will’ must be in writing and signed by the testator.
- 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.
- 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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