Will: An Important Document

 

Importance of a Will 

In the following blog we will discuss the topic Will and its importance in today’s world in very simple terms. The complex issues related to this subject will be discussed in blogs to come.

The most certain thing in any individual’s life is death, rest of the things are uncertain. A mere mention of the word ‘Will’ makes many people uncomfortable as the word is associated with death of a loved one.

However, in today’s world it is extremely important to make a Will so that your loved ones do not have to face any legal complications and run from pillar-to- post to ensure that they become legal owners of your property after your death. 

 

Who can make a Will?

 

Every person who is of a sound mind and is not a minor can make a Will. 

Here the sound mind means – the testator (person who is making a Will) has a sound mind to understand the disposition of the property in his Will. He must comprehend and have a clear understanding of what he is doing with regard to his property. 

The person must be able to clearly identify the people to whom he wants to pass on the property after his death and the extent of his property.

Here it is important to note that subsequent insanity does not render the Will invalid. A person with unsound mind can make a Will during his lucid interval (this is the period between two fits of insanity when the person is well aware of the consequences of his action.)

No minor is capable of makin a Will. 

 

Essentials characteristics of a Will

Before dealing with the essential features of a Will it is important to look at what a Will is in legal terms.

Will -- is a legal declaration made by any person (testator) with respect to his property, which he desires to take effect after his death. It is a legal instrument by which a person makes a disposition of his property to take effect after his death.

This means any person can make Will of only that property which he has acquired himself.

1 . A person can make a Will at any time in his life. He can also make changes to the Will as many times as he wishes there is no legal restriction as to how many times a person can change his Will.

1 (1).  The law also permits the person to withdraw the Will at anytime during the lifetime of the person.

1 (2).  A Will has to be attested by two or more witnesses, each of who should have seen the testator signing the Will.

 

2. Disposition of Property

The testator (person making a will) can opt to bequeath (leave) his property to any the person or persons he chooses.

 

3. Will takes effect only after death

The Will comes into force only after the death of the testator and not before.  

 

4. Registration of a Will

Registration of a Will is not at all compulsory. The Supreme Court of India is its decisions has held that no inference can be drawn about the genuines of the Will merely because it is not registered. However, it is always advisable to get the Will registered so as to provide a strong legal evidence about the validity of the Will. 

 

How to make a Will and care to be taken while drafting

 

The first question that comes to the mind of any individual who has made up his mind to make a Will is do I require a lawyer for drafting the Will and what are the legal formalities that are to be followed.

No need of a lawyer

To draft a Will there is absolutely no need to hire any lawyer. A Will can even be written on a plain piece of paper. However, the do-it-yourself Wills normally do not contain legal components and become the root cause of family disputes. Hence it is advisable to consult a lawyer while drafting a Will.

Important points while drafting a Will

1.     This is the most crucial and important part of any Will. Most of family disputes arise due to improper and ambiguous drafting of the Will. The Will should as far as possible be very clear and communicate the intention of the testator regarding disposition of the property.

 

2.     There is no fixed format or template to draft a Will, it can be made in any form and in any language. It is not at all necessary to use legal or technical words in making of a Will.

 

3.     In the first paragraph the you have to write your name, address, age at the time of writing the Will and also declare that you are making this will in your full senses and free from any kind of pressure.  

 

4.     The next step is to list out the properties – immovable and movable –  (land, flats, plots, bank deposits, shares, mutual funds, jewellery, gold, vehicles and so on) and mention where the documents of these properties are stored so that it becomes easier for the descendants to trace the papers after your death.

 

5.     It is very important to mention in very clear and unambiguous terms who should own your assets and in what proportion in the Will. If the assets are being given to a minor, then it is important to make sure that you appoint a trustworthy custodian of your assets till the minor reaches an adult age.

 

6.     Once you complete writing the Will, you have to ensure that you sign the Will in the presence to two independent witnesses, who have to sign after you put your signature, certifying that you have signed the Will in their presence. The date and place must be clearly mentioned at the bottom of the Will. Witnesses should not be direct beneficiaries in the Will. You and witnesses should sign every page of the Will.

 

7.     Mention that this is your last Will and as a result the earlier Wills stand revoked.

 

8.     Appoint an executor who is trustworthy and knows about your wishes and work.

 

Dear Friends: This is the first part in the series on Wills. In the next part we will discuss about Codicils, Alterations to Wills, Joint Wills and Probate.

 

Adv Rahul M Tawade

rahultri99@gmail.com