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Differences Between Power of Attorney and Will in India

Introduction:

Definition of Power of Attorney:

Power of attorney is defined under section 1A of the Powers of Attorney Act,1882.—In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it.”

The power of attorney gives a vast concept under the Powers of Attorney Act,1882. A power of attorney is important for long term care and there many types of power of attorney that comes under the general or limited power of attorney.

The state allows any or all matters of a general power of attorney to act on behalf of the principal.

The agent is given power by the limited power of attorney in specific matters to act on behalf of the principal.

Parties in a power of attorney:

The person or individual who gives the power of attorney is called the principal. The person or individual who receives the POA is known as agent or attorney-in-fact.

Types of Power of Attorneys:

  1. Non-Durable Power of Attorney
  2. Durable Power of Attorney
  3. Special or Limited Power of Attorney
  4. General Power of Attorney
  5. Springing Power of Attorney

Wills in India:

A Will is a legal declaration made by the testator where he names one or more person or individual to manage his or her property and transfers the property at the time of death. Any person or individual who is above 21 years of age can make a will. A Will gets importance after the death of the testator or comes into effect after the death of the testator.

Types of Wills:

Privileged Wills:

From the term privilege it can be seen that it is provided to certain persons. A privilege Will is made by airman, soldier, navy persons and by many who willingly dispose of their property during their employment.

Unprivileged Wills:

Wills which are executed in accordance with the provisions of section 63 of the Indian Succession Act,1925 is known as Unprivileged Wills.

Conditional or Contingent Wills:

A Will can be expressed to take effect only in the event of satisfying certain conditions or can be contingent upon other factors and such Wills are called conditional or contingent Will.

Joint Wills:

Joint Will is a type of Will wherein two or more persons agree to make a conjoint Will. If a Joint Will intends to take effect after the death of both persons, then it would not be enforceable during the life-time of either. The person at any time during the joint lives or after the death of one can revoke the joint will.

Concurrent Wills:

Concurrent Wills are written by one person wherein two or more Wills provide instructions for disposal of property for the sake of convenience. For instance, one Will could deal with the disposal of all immovable property whereas another Will deals with the disposal of all movable property.

Mutual Wills:

In a Mutual Will, the testators confer upon each other reciprocal benefits. A husband and wife will execute a mutual will to pass on all benefits to the other person during their lifetime.

Duplicate Wills:

The testator will create a duplicate will for the sake of safety or safekeeping with a bank or executor or trustee. However, if the testator destroys the Will in his/her custody, then the other Will is also considered revoked.

Sham Wills:

Sham Wills are executed but held invalid if the testator does not intend to execute as per his/her wishes. As per the Indian Succession Act, a Will made by fraud or coercion or by taking away the free agency of the testator is considered invalid.

Holograph Wills:

The testator writes this holograph wills entirely in its own handwriting.

Essential Features of a Will:

1. Legal declaration

2. Disposition of property

3. Takes effect after death

Differences between Power of Attorney and Will in India:

Discrepancies between Will and Power of Attorney:

Legal documents are an essential element of Wills and power of attorney and when the difference between these documents are well established and understood then no confusion arises. Will gives great power to the executor in the administration of the property and in the case of power of attorney, the agent is given limited powers.

Major differences between Wills and power of attorneys:

The first difference of power of attorney and Will is the time period that it takes to take effect. Will comes into effect after the death of the testator and power of attorney takes effect only during the lifetime of the testator. In case of Wills, the power of executor is not limited but in case of a power of attorney the power of the agent is limited.

Conclusion:

Wills and power of attorneys are both legal declarations which provides rights and powers to another person or individual. It is better to consult with the expert to get proper advice in case of power of attorney and Wills in India.

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