Before turning to the different types of wills, it helps to know the Inheritance Law, 1965, which provides that a deceased person’s estate can be divided in one of two alternative ways: under the statutory inheritance rules set out in the law, or under the distribution instructions the deceased laid down in a will.
A will, then, is a legal document in which a person determines who will inherit their property after death and how it will be divided among them, mainly where the person does not want the property divided under the statutory inheritance rules.
The Inheritance Law recognizes several types of wills: a handwritten will, a witnessed will, a will made before an authority, and an oral will (a deathbed will, known as shekhiv mera).
The law sets out the conditions under which each of these four types of wills must be made so that it is recognized as lawfully made and can be given binding force through a probate order.
And this is worth knowing: for a will to be carried out and the estate divided according to its instructions, drafting and signing the will is not enough. A probate order must also be obtained after the testator’s death (just as an inheritance order must be obtained after the death when the estate is distributed under the statutory inheritance rules).
Why the distinction between types of wills matters: the probate process is designed to confirm that the will before the court is genuine and valid, as opposed to a forged will, a will the deceased revoked, a will made under undue influence on the testator, a will flawed in the way it was made, and so on.
In each of those cases, the will is not given force through a probate order. Section 25 of the Inheritance Law, however, lets the court uphold a will that suffers from some defect, if the court has no doubt that the will reflects the testator’s true and free wishes, and provided the will’s core elements are present. The law defines those core elements separately for each type of will.
Here is an explanation of each type of will, its core elements, and how it can still be upheld if it turns out to be defective.
Types of wills – the handwritten will
A handwritten will is one written in its entirety, from beginning to end, in the testator’s own hand. It must also bear a date in the testator’s handwriting and carry the testator’s signature (Section 18 of the Inheritance Law).
The core element of a handwritten will: the entire will is written in the testator’s own hand (Section 25(b)(1) of the Inheritance Law).
So if some detail of the making of a handwritten will is defective or missing, the court may still grant a probate order for it, provided the court has no doubt that it reflects the testator’s free and true wishes, and provided it was written entirely in the testator’s own hand.
Most wills drawn up today are printed rather than handwritten, so this type is relatively uncommon.
Types of wills – the witnessed will
The witnessed will is the most common and widely used type of will today.
A witnessed will is a written will (not necessarily handwritten, so it is usually printed), bearing a date, signed by the testator before two qualified witnesses after declaring to them that this is his will, with the witnesses then confirming by their signatures on the will that the testator so declared and signed (Section 20 of the Inheritance Law).
The witnesses qualified to sign such a will are adults who have not been declared legally incompetent (Section 24 of the Inheritance Law), and who are not themselves beneficiaries under the will (Section 35 of the Inheritance Law). Typically, the lawyer who drafted the will signs as one of the witnesses, alongside another witness.
The core elements of a witnessed will: the will was made in writing, and the testator brought it before two witnesses (Section 25(b)(2) of the Inheritance Law).
So if some detail of the making of a witnessed will is defective or missing, the court may still grant a probate order for it, provided the court has no doubt that it reflects the testator’s free and true wishes, and provided it was made entirely in writing and before two witnesses.
Types of wills – the will made before an authority
A will before an authority is a will stated orally by the testator, or submitted by the testator in writing, before a judge, a notary, a court registrar, the Registrar of Inheritance Matters, or a member of a religious court (Section 22 of the Inheritance Law).
A will made before an authority is prima facie evidence that the person named in it as the testator made the will, and that it was made on the date and at the place stated in it.
As noted, the testator may state the provisions of the will to any of these officials orally, or submit them in writing.
If the testator chose to state them orally before one of these officials, they must be put in writing in the following way:
(1) The official must write the provisions down and read them back to the testator; the testator must declare and confirm that these are indeed the provisions of his will; and the official must then confirm, by signing the written version, that it was read to the testator and that the testator so confirmed.
(2) If the official recorded the provisions in a language the testator does not understand, they must be translated into a language he understands, and the translator must confirm this on the will.
(3) Instead of having the provisions or their translation read to him, the testator may read them himself.
The core elements of a will before an authority: the will was stated before an authority or submitted to the authority by the testator himself (Section 25(b)(3) of the Inheritance Law).
So if some detail of the making of such a will is defective or missing, the court may still grant a probate order for it, provided the court has no doubt that it reflects the testator’s free and true wishes, and provided it was stated before an authority or submitted to an authority by the testator.
Types of wills – the oral will
An oral will is a special and quite rare will, made by someone who is dying or believes death is near, such as a patient on their deathbed, which is why it is also called a deathbed will. If the testator is still alive a month after making the oral will and the circumstances that justified it have passed, the will is automatically void and has no effect.
An oral will is defined as a will made by a person on their deathbed, or by a person who, in circumstances that justify it, sees themselves facing death (Section 23 of the Inheritance Law).
In such a case, the testator may state the provisions of the will orally before two witnesses who understand his language. These, too, must be adults who have not been declared legally incompetent (Section 24 of the Inheritance Law), but unlike the witnesses to a witnessed will, they may be beneficiaries under this will (Section 35 of the Inheritance Law).
In addition, the oral provisions of the will must be put into writing, as follows:
The testator’s words must be recorded in a memorandum noting the date and the circumstances in which the will was made, the witnesses must sign it, and it must be deposited with the Registrar of Inheritance Matters. All of these steps, recording the oral provisions, having the witnesses sign, and depositing the document with the Registrar, must be carried out as soon as they feasibly can be.
The core elements of an oral will: the will was stated by the testator himself, before two witnesses who heard him, while he was on his deathbed or while, in circumstances justifying it, he saw himself facing death (Section 25(b)(4) of the Inheritance Law).
So if some detail of the making of an oral will is defective or missing, the court may still grant a probate order for it, provided the court has no doubt that it reflects the testator’s free and true wishes, and provided all the core elements listed above are present.
