A will is a legal document which declares the intention of the owner of the property with respect to his property, which he desires to be carried into effect after his death. It means a document whereby the maker disposes off his property, but such disposal comes into effect only after his death. The person making the will is known as the Testator. The person who inherits the property under will is known as the Legatee/Beneficiary.
Requirements of a WILL:
- It must be in conformity with the law
- It must be executed by a person legally competent to make it i.e. he should not be a minor or of unsound mind and he must have some interest which he wants to convey to some other person through the will
- It must declare the disposition of property of the maker
- Such declaration must be intended to take affect after his death
- It must be properly signed and attested. It must be attested by two witnesses who must witness the testator executing the will. The witness must sign in the presence of each other and in the presence of the testator.
- It must be clear and unambiguous so that intention of the maker is truly reflected
A will can be revoked or altered at any time by the testator. He can do so by executing a new will, revoking the earlier will or by making a codicil. A will is revocable during the lifetime of a testator.
A codicil is a document that amends a previously made will. Thus, it is an instrument which is made in relation to a will that explains, alters and adds to its disposition. It is deemed to form a part of the will. It has to be executed and attested like a will. Also, it is governed by same rules as a will. A Codicil becomes legally valid once it is drafted and signed by the Testator.
Thus if a person wants to make any sort of changes in his will, he needs to do it through a codicil wherein he may even cancel the entire earlier will and make a fresh will. Also, he may incorporate the desired changes, or, he may alter only the relevant parts of the will suitably as well. A change can be in the form of addition, deletion or substitution of some clause or name or property or date etc, with a new one, or any other type of change.
A codicil is valid only if it is executed and attested in the same manner as a Will. Codicil is a supplementary document to the will and cannot stand independently. A Codicil can be made only to an existing Will, not to any future Wills. The person who has made the Will, i.e. the Testator, shall be the person who also makes the Codicil and signs it in the presence of two witnesses. The date on the Codicil should be very clear.
Thus, though an Indian will is a static document, it can be changed through codicil over time as the circumstances in your life and your family change. Codicil basically states what items of your will you are changing. Interestingly, codicil should be kept together with Will. In case you revoke your codicil, like will, it is assumed that you never had drafted a codicil at all.
Requirements of a CODICIL:
- The name of the Testator, the person who made the Will, his address, age and father’s name just as mentioned in the original Will.
- The date and place of making the Codicil.
- The clauses in the Will with the correct sub-clauses, sub-headings etc which the Testator wishes to amend or change. The Clauses to be changed should be exactly numbered as in the Will without giving space to any ambiguity.
- The new additions or deletions or substitutions that are to be incorporated into the Will.
- The exact places in the Will where the new changes are to be inserted.
- Signature of the Testator in the same manner as in the Will.
- Two witness signatures after the Testator’s signature is placed.
- A codicil need not necessarily be in a Stamp Paper, it can be written in a plain paper also.
- The Codicil so made should be kept along with the Will.
Things to remember:
- Testator in the Will and the Codicil should be the same. The signatures should match.
- Date of codicil should always be a date after the date of Will, and not a date prior to the Will.
- A Codicil should have the Section and Clause of the Will in the same format.