Many circumstances in life are unavoidable including death which is one of the certainties of life. To secure the upcoming generation and to identify that who should inherit a person’s property after they die, a will is created. A will is an important tool which helps in determining how and where your possessions shall be used post your death. However, creating a will can be a troublesome and complicated task. Hence, one must have at least a basic and clear understanding of what exactly a will is.
In this article, we will shed the light on the various important aspects regarding a will. But before we move further, let us try to know what will actually means.
What is a Will?
A Will is a legal declaration by a person stating his intention regarding his possessions and property that he wishes to distribute after his death. It is a legal instrument through which he is able to dispose off his property which take effects after his death. The recipient of the property often includes a person’s spouse, children, grand children or any charitable organization.
Who can make a will?
In India, every person who is of sound mind is allowed to make a will as per Indian Succession Act, 1925. However, there are certain classes of people who are not allowed to make a will:
Person disqualified under any law by the Court
If a will is executed by a minor, it shall be void. However, a testamentary guardian can be appointed on his behalf to dispose of the property
A deaf and dumb person can also make a will by expressing his consent in gestures or writing
Importance of drafting a Will
A will document acts as an stock of the assets that have been left behind by the deceased. A will which is properly and clearly and drafted helps in avoiding any legal dispute among the heirs. Drafting a will becomes more important when a person wishes to distribute his possessions among people who are not natural heirs.
When a will is already in place, it makes things easier and efficient for a family to dispose of the property in a simplified manner. Due to non-availability of will, things can be unorganized and stressful. A will ensures that your possessions are distributed to your family members or anyone whom you want to share with.
Key points to be taken care of while drafting a will
Details of the testator (one who makes a will) is mandatory. The details of the testator must include name, address, age and other relevant details.
Any declaration made in the will must be legal. It should not contain any illegal declaration.
Intentions of the testator must be clearly defined with respect to future and not present. Stating present affairs in will is void.
Details of the possessions or the property that the testator wants to distribute must be enumerated clearly along with other relevant details like registration number, description, date of registration. Further, it must be stated whether it is a moveable property or not.
Possessions or the property as mentioned in the will must belong to the testator at the time of making the will.
Details of the beneficiaries must be provided. If there are more than one beneficiary, then the details of all of them and the relationship with the testator must be clearly specified.
An executor must be appointed by the testator who will be responsible for implementing the will after the death of the testator.
Will must be signed by the testator along with the date.
In case of any property which is jointly held by testator along with other members, then Will cannot be executed for such property. It shall be void.
Is There Any Specific Format Prescribed For Drafting A Will?
Although Will is a legal document, However, there is no such prescribed form of it as it can either be handwritten or typed on any paper and not just on the stamp paper. Further, a Will may be either altered or revoked by the owner at any time before his or her death.
Documents Required for making a Will
The following are the important documents which are required for making a Will:
Documents of the property
Documents like birth, marriage, divorce and death certificate
Number of Insurance Policy
Bank Account Number
Mortgages and deeds
Types of will
There are basically two types of Will in India.
Privileged – It is made by special class of persons. For ex: soldier at war. There is no requirement to get it attested.
Unprivileged – It is Made by ordinary and general persons which must be signed and attested by at least two persons.
Apart from above, there are other types of will also which includes Oral Will, Formal Will, Mutual Will, Conditional or Contingent Will, Statutory Will.
Is it compulsory to register a Will?
It is important to understand that one can even execute a Will on a simple plain paper and it shall still be valid even if it is not registered. Hence, it is not mandatory to register the Will under any Indian law. However, in order to stamp its authenticity, one should contemplate registering their Will. It can be done by visiting the office of sub-registrar with witnesses.
Registration of a Will shall cause it to become legal evidence. It must be in writing and must be executed by a person of sound mind and without any undue influence.
Who can be a witness to a will?
Most states necessitate that witnesses to the will should not stand to inherit under the terms of the will. A beneficiary’s spouse may also stand to be disqualified from being a witness. If a beneficiary to the will serves as a witness, the will to that person could be declared void by a court.
Even though the concept of Will Registration is not mandatory in India, however the same is necessary for increasing its authenticity and value in the eyes of the law. Further, as per section 40 of the Indian Registration Act, 1908, one can easily obtain Will Registration even after the death of the testator. Moreover, there is no specific period prescribed for obtaining Will Registration so that one can apply for the same at any time.
CA Pulkit Goyal, is a fellow member of the Institute of Chartered Accountants of India (ICAI) having 10 years of experience in the profession of Chartered Accountancy and thorough understanding of the corporate as well as non-corporate entities taxation system.
His core area of practice is foreign company taxation which has given him an edge in analytical thinking & executing assignments with a unique perspective. He has worked as a consultant with professionally managed corporates. He has experience of writing in different areas and keep at pace with the latest changes and analyze the different implications of various provisions of the act.
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