1. The word ‘Will’ evokes divergent feelings among different people. Some consider it to be a pragmatic act whereas others associate it with unpleasantness and disputes. Unfortunately, even those who consider the Will to be useful do not make one. Among the many reasons for not writing a Will, one is the lack of knowledge on how to make a will. Nevertheless, execution of Will is a very practical and thoughtful action which more than minimizing disputes, makes things simpler for the surviving family members. The times after a death in the family are turbulent but as they say “Where there is a WILL, there is a way”.
What is a Will
2. As per the Indian Succession Act, 1925, a Will means a legal declaration of the intention of the testator (person making the will) with respect to his property which he desires to be carried into effect after his death. For understanding other legal terms related to the subject, please read here.
Why do you need a Will?
3. The main aim of a person in making a Will is to lay down the manner in which he/she wants his/her property to be disposed of after his death. However, there are many other benefits of making a Will which include: –
a. A proper inventory of all the assets one owns is prepared so that the family members do not have to search for the same in case of one’s untimely demise.
b. A lot of misunderstanding and possible protracted legal battles amongst the family members and relatives can be avoided by clearly specifying in the Will as to who gets what.
c. One can make special provisions for some people like a handicapped child, widowed daughter, a loyal servant, charity, or anyone else who would, in absence of a Will, get a share in property strictly as per laws of succession depending upon the deceased’s religion.
d. A Will can save huge amounts of money that may have to be paid in obtaining a Succession Certificate, Letter of Administration or Probate where a considerable amount of Stamp Duty and Court Fees are required to be paid, not to talk about the fees & expenses of hiring a lawyer.
e. One can appoint a testamentary guardian who would take care of one’s minor children in case of one’s untimely demise.
f. One can preclude devolving of one’s assets to an undeserving relative.
Myths & Reality
4. Some people often wonder as to why one needs a will since all that one has is a house which would as such go to his/her spouse and some amount in bank and an insurance policy in both of which a nominee is given. These are some of the myths which prevent people from making a Will. The legal position, however, is very different e.g.
a. The house would not automatically pass on to the spouse in absence of a Will since other legal heirs will have a share in it as per the respective law of succession e.g. Section 10 of the Hindu Succession Act, 1956.
b. Similarly, the nomination of a person in a bank account or insurance policy, etc. does not make that nominee an owner of that money. It only gives managing rights after the death of the account holder. Hence making a Will is always a wise decision.
How to make a Will
5. The process is based on three mandatory legal requirements of a valid Will as per Section 63 of the Indian Succession Act, 1925 and they are: –
a. It should be in writing.
b. The testator should have signed or put his mark on it in the presence of two witnesses.
c. At least two witnesses should have attested it in the presence of the testator. The witnesses must not be beneficiaries in the Will.
Writing the Document
6. The first part of the process is writing the document. First of all, you need to write down the details of the property and the beneficiaries. Then specify whatever you desire to be done to each of the assets. The following must be included: –
a. Your personal particulars giving your name, father’s name, age, and address, etc.
b. A statement that it is your last will and it supersedes all previous Wills.
c. A statement that you are making the Will of your own free volition without any undue pressure of any kind.
d. A clear description of each item of property.
e. A clear description of each of the beneficiaries with the item/s of property (or share therein) bequeathed to them.
f. Directions about the disposal of Residual Estate and any other special instructions.
g. Appointment of an Executor (Optional but highly advisable).
Execution Process
7. Next is the execution part. This will involve the following:-
a. You and at least two witnesses should sign the Will in the presence of each other.
b. The signature of the Executor should also be obtained to signify his/her consent for the responsibility.
c. A medical certificate from a doctor stating that you are in a fit state of physical & mental health is advisable to be attached. Alternatively, a medical doctor can be one of the witnesses.
Registration of a Will
8. The registration of a Will is NOT mandatory. As per Section 18 (e) of the Registration Act, 1908, it is more a matter of choice of the testator since the registration of a Will has its own benefits and drawbacks. The registration per se does not add any additional legality to a Will vis-a-vis an unregistered one.
Advantages of Registration
9. The registration of a Will has some definite advantages which include:-
a. Safe custody of the document.
b. Safety against tampering.
Disadvantages of Registration
10. However, registering a Will also has some disadvantages. A few of these are given below:-
a. The registration process is relatively cumbersome because the testator and all the witnesses etc will have to go to the Registrar office for registration.
b. The same process will have to be followed for any amendment or change to a registered Will. This is so because, every subsequent addition/alteration/amendment (codicil) to the original Will, will also have to be registered.
c. Every subsequent Will also has to be registered. On the other hand, the testator can alter, amend, or even replace an unregistered Will at his will and convenience, as many times as he wants.
11. One question is often asked in this context. Does one need a lawyer to write a Will? Theoretically speaking, you can write it yourself. However, Will is a very important document. Its drafting and execution need to be meticulous. A minor variation in a single clause/phrase/ word can substantially alter the very meaning of the entire document. Similarly, even a minor lapse in the execution process can also render the whole Will invalid. The resultant disputes and legal battles can go on for years. They can be very costly, too. This will defeat the very purpose of the Will. Therefore, it is advisable to take the assistance of a lawyer for both the writing & execution of your Will.
Conclusion
12. So, the lack of knowledge about how to make a will is really not that insurmountable a hurdle, after all. One can not overemphasize the importance of a Will. A properly executed Will can save a lot of hardships to the surviving family members. A Will can ameliorate the suffering to a great extent. In addition, it can also prevent the considerable drain on the funds by way of saving on heavy legal costs payable in the absence of a Will.