Category: Will & Estate Planning

What legal matters are to be considered before writing a Will

According to the Indian Law, “Will is the legal declaration of a person’s intention which he wishes to be performed after his death and once the Will is made by the testator it can only be revoke during his lifetime.” A person cannot give his ancestors property in the form of a Will but he can make a Will only of his Self-Acquired property .

A Will regulates the succession and provides for succession as declared by the testator. The statutory definition of a WILL as defined under ‘Section: 2(h)’ of The “Indian Succession Act, 1925”, means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A testator is authorised with power to appoint any person as beneficiary of his Will whereas ‘Section: 5’ deals with the law regulating succession to deceased persons moveable and immovable property

There are two essential characteristics of a Will:-

(i) It must be intended to come into effect after the death of the testator; and

(ii) It must be revocable by the testator at any time.Although Wills are usually made for disposing property, they can also be made for appointing executors, for creating trusts and for appointing testamentary guardians of minor children.

When a person dies without having made a Will, he is said to have died intestate. His property is then inherited by his legal heirs in accordance with the law of inheritance applicable to him. It must be noted here that legal heirs generally include close family members such as one’s spouse, children, parents, brothers and sisters.

How to make a Will in India and its importance?

A will has several parts, which duly completed, make up a complete Will. Though there is no legal or defined format, there is a template, which has been generally used for ages.

Who Can Make ‘Will’?

Every person who is competent to contract, but he must be major, sound mind and willing to write a Will. A Will cannot be made by some persons i.e. minors, insolvent, persons disqualified under any law by the court.

General Procedure To Make A ‘Will’:

A ‘Will’ should be prepared with utmost care and must contain several parts to make a complete Will though there is no defined format for making a Will but a general procedure should be adopted while writing a Will by the testator which includes:

  1. Declaration In The Beginning: In the first paragraph, person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to write a Will.
  2. Details of Property and Documents:The next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. He must also state the place where he has kept all the documents. If the will documents are under safe custody of the bank then testator has to write details about the releasing of the Will from the bank. Here it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.
  3. Details of ownership By The Testator:A testator while making a original Will should specifically mention that who should own his entire property or assets so that it will not affect the interest of the successors after his death. If testator wishes the name of the minor as beneficiary then a custodian of the property should be appointed to manage the property.
  4. Attestation of the ‘Will’ :At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of at least two independent witnesses, who have to sign after his signature, certifying that the testator has signed the Will in their presence. The date and place also must be indicated clearly at the bottom of the Will.
  5. Execution of A ‘Will’:On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. Thereafter, if no objection is received, the probate will be granted and It is only after that Will comes into effect.

Registration of ‘Wills’: 

Registration of a will is not compulsory in India. However, it is the testator’s choice. Registration implies that the person writing the will and the witnesses have appeared before the registering officers who have verified their identity and attested the same. A registered WILL can also be contested in the court of law.

No Format: There is no prescribed format. It must communicate the intention of the person. It can be in any language and can be either hand-written or typed.

No Stamp Duty: There is no stamp duty to be paid on a will. To be a valid document, the will must be signed and witnessed by at least two witnesses.

Registration: The will should be registered in the office of the sub-registrar of the district in which the testator resides.

Maintenance: After registration, the will must be kept in the sub-registrar’s office. It can be modified only through notification through codicils which also have to be registered.

Revocation of ‘Wills’ 

A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. A Will can be revoked by testator of the Will at any point of time.

Voluntary Revocation:A testator who wishes to revoke his original Will can make revocation of the will himself by writing a subsequent Will or codicil duly executed and by destruction of the previous will, means by burning, tearing, destroying or striking out the signature of the original instrument of a Will.

codicil is a document that’s added to an existing, signed Will, to change it or add new provisions to it.

 For more details about WILL creation and information on the same please contact us here

-Varsha Gaikwad

Para Planner-Advisory

Dilzer Consultants Pvt Ltd.

9 October 2016