As a responsible spouse, parent, relative we need not and should not wait to reach a certain age to write a Will. Uncertainty of life is a fact! We take care to give a secured, happy life to our relatives during our entire lifetime and certainly we do not want them to face any trouble, disputes, harassment when we are not around to help them. Parental love and concern looks beyond one’s life and seeks happiness for the loved ones in every situation. Making a Will makes it simpler for the relatives left behind to chalk out the wealth distribution issues as per your wishes.
What is a Will:
According to The Indian Succession Act 1925:
“A Will is the 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.”
Will is a legal document containing the declaration made by the testator related to the disposition of his/her property after his/her death. A Will becomes enforceable only after the death of the testator. The testator can change his Will at any time and in any manner during his lifetime.
Persons competent to make a Will:
Any person who is mentally sound and attained the age of majority can make a Will. People who are blind, deaf or dumb can also make a Will, if they are fully aware of what they are doing.
Requirements of a Will:
In India, Will can be written on a plain paper, in one’s own hand writing and in any language.
There is no prescribed form of a Will. Will can be written on a plain paper. It can also be on a stamp paper, but it is not compulsory. Take care to write the Will on a thick white paper, durable enough to last a lifetime. Will can be typed or handwritten. Sometimes hand written Wills are considered more authentic because the writing can be verified to belong or not of the testator, in case of any doubt or dispute. No technical words are required but take care to write clearly leaving no ambiguity.
Will should contain Four major details:
1. Declaration of one’s name , address, age at the time of writing the Will and a declaration that you are writing it in a condition of sanity without any kind of duress or pressure.
2. Details of your property and documents.
3. Details of the beneficiaries and their share in the property.
4. Attestation by the testator(you) and witnesses.
Attestation of Will:
Testator has to sign or affix his mark to the Will. This is a must. The testator should sign on every page of the Will.
Attestation by two or more witnesses:
Two or more witnesses have to sign the Will in the presence of the testator or the other witness. The testator should also sign in front of the witnesses and witnesses too should be made to sign on all the pages of the Will. One thing to remember here is that the witnesses should be trusted people and he/she should not be the direct beneficiary of the Will and adults.
Registration of Will:
A Will should be registered at the local court, by the registrar. The testator has to be personally present at the registrar’s office along with the witnesses. Registration makes the Will a strong legal evidence that the proper parties were present during registration and the registrar has attested only after verifying the identities of the testator and witnesses.
Once a Will is registered it is kept in the safe custody of the registrar and released only to the testator or to the authorised person after the death of the testator, on producing the death certificate.
Execution of Will:
After the death of the person who has written the Will (testator), an executor of the the Will or the heir of the deceased has to apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections the court will grant probate.
Some other terms related to a Will:
Executor of Will:
An executor is a person appointed by the testator in his Will or codocil to administer the testator’s property and to carry into effect the provisions of the Will.
Codocil is an instrument (document) related to the Will. It is that part of the Will which explains, documents any changes in the Will. If the testator wants to make any changes like change of names of executor or any additions to the Will, it is done by making a codocil which becomes a part of the Will. The codocil must be reduced to writing and signed by the testator and attested by two witnessess.
A probate is the copy of the Will given to the executor, together with a certificate granted under the seal of the court and signed by the registrar, certifying that the Will has been proved. A probate is obtained to authenticate the validity of the Will.
Letter of Administration:
Letter of administration is a certificate granted by the competent court to an administrator authorizing him to administer the estate of the deceased in accordance with the Will.
A Succession Certificate:
Succession certificate is granted by the court to realize the debts and securities of the deceased and to give valid discharge.
Will and Nomination:
Nominee is different from beneficiary in a Will. Nominee may or may not be a beneficiary in the Will. He/or she is merely a trustee. Provisions of the Will prevail, are considered over the nominees.
Writing a Will is not a very complicated procedure. It makes things easier for the relatives and disputes are prevented. If a Will is not made, the wealth will be distributed as per the ‘Law of Succession’ which may or may not be according to your desires when alive. Keep the Will at a safe place and let one trusted person know about the place. Make a copy of the Will too.