[Guest Post] The need to make a Will and related aspects

The post has been contributed by Mr. Shantanu Mohan Puri, Managing Partner of SMA Legal, Legal Advisory Services and Gurleen Kaur, Junior Associate Lawyer, SMA Legal.


Most of us want to be sure that a good and meaningful life is not forgotten after death. Whatever one has achieved and earned in terms of tangible assets in one’s life is passed on to the family and to those dear. The surest and the easiest way to do so is by writing a Will. This write-up shares the basic issues regarding a Will.

A simple and straightforward meaning of a Will is given in the Oxford Dictionary which defines a Will as ‘a legal document containing instructions as to what should be done with one’s money and property after one’s death.’

The law in India with respect to Wills is provided in the Indian Succession Act, 1925. As per Section 2(h) of the said Act, a Will is the declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death. In other words, a Will or a Testament means a document made by a person whereby he disposes of his property, but such disposal comes into effect only after the death of the testator.

If a person dies without leaving behind his Will, his property would devolve by way of the law of intestate succession and not testamentary succession (i.e. in accordance to a Will). Hence, it is preferable that one should make a Will to ensure that one’s actual intention is followed and the property left behind is devolved accordingly.

A Will can be changed as many times as the testator wishes since it is but natural that situations change in a lifetime. However, the Will, the testator makes before he breathes his last is the final Will.

Some terms commonly used in relation to a Will are:

  • Codicil – is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will.
  • Executor – is the legal representative for all purposes of a deceased person (testator) and all the property of testator vests in him.
  • Legatee/Beneficiary – is a person who inherits the property under a Will.
  • Testator – is a person making a Will and executing it.

Applicable Laws

  • The Indian Succession Act, 1925
  • Hindu Personal Laws
  • Muslim Personal Laws
  • The Indian Registration Act, 1908.

Requirements

To make a Will :

  • The testator must be of 18 years of age.
  • He/She must not be mentally challenged.
  • If the person is visually impaired or vocally challenged even then he/she can make a Will. However, she must be aware of the consequences of the Will.

In general, a Will requires the following details:

  • Personal details of the Donor: like name, father’s name, address, date of birth;
  • Date of preparation of the Will;
  • Validate that it is a free Will (not prepared under pressure or influence);
  • Details of the Executor: name, address, relationship with the donor, age;
  • Details of Assets and Beneficiaries: List all immovable properties with clear addresses;
  • Mention the movable assets like bank deposits, insurance, units of mutual funds etc.
  • Mention the name of beneficiary(ies) for each asset.
  • Signatures of the witnesses: two witnesses (mention their father’s name and
    address).

Formalities

A Will can be made on plain white paper. It is not necessary that it has to be made on stamp paper unless the Testator wants to get it registered. According to Section 18 of the Registration Act, 1908, the registration of a Will is not mandatory but the same is recommended. Through registration, your Will is safeguarded as it is going to be available to a number of peoople, and no attempts of tampering can destroy its contents.

A Will can be registered in the office of the Registrar/Sub Registrar. The registration fee for a Will depends upon the value of the property mentioned in it. However, it does not have any Stamp Duty. After registration of a Will, the original copy of the registered ‘Will’ will be with Registrar/Sub-Registrar Office, while you get to keep a copy of it.

In the event of the death of the testator, the property will not automatically devolve on the beneficiary. Either the beneficiary or the executor must obtain a probate from the court of law. A probate is a certificate by the court that the Will is valid.

If a probate is to be taken, a notice has to be given to the beneficiaries so that they can file their necessary objections. Even if no objection is given, a court fee has to be paid before a probate is obtained. Even after a Will is made a path is left open for the court to hear objections to the Will, if any, by the beneficiaries.

Conclusion

The importance of a Will should not be underestimated. An adult should consider it to be his duty to make a Will in a detailed and a transparent manner, so that the beneficiaries can inherit the assets and properties, without dispute or litigation. Making a Will also should not be considered to be an indication of one nearing his end. On the contrary, it should be seen as an act of love for those, one cares for, during a lifetime and even afterward.

Image from here.

L&P Editorial Team

The Law & Practice Blog's editorial team.

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