Making Of Will Yourself

H.L. Kumar

24 March 2022 6:44 AM GMT

  • Making Of Will Yourself

    The most certain thing in one's life comes at the very end of it - the certain call, the death. But life still goes on and beyond. And the dead lives among the alive in their memories that he leaves behind besides other things. There cannot be a dispute regarding the fond memories, for they can be shared without dispute but the 'other material things' most of the time become a...

    The most certain thing in one's life comes at the very end of it - the certain call, the death. But life still goes on and beyond. And the dead lives among the alive in their memories that he leaves behind besides other things. There cannot be a dispute regarding the fond memories, for they can be shared without dispute but the 'other material things' most of the time become a bone of bitter contention. This is where enters the Will. Will is a legal document containing the desire of the dead regarding his/her 'other material things' - his property. A Will goes a long way in precluding the probability of all possible disputes that might arise after the death of the testator among his/her legal heirs.

    With soaring prices of immovable properties, the question of how to divide wealth, especially if it involves property could cause major dispute. Since wealth is a well-known corrupter of mind, which blinds humans to make distinction between the right and the wrong, it is important to preserve the confidentiality of the Will, for, the lack of confidentiality may pose a grave threat to the life of the testator.

    This is not to suggest that everyone should necessarily pay for an expert lawyer or wealth manager to write up a Will. You can always make your own Will, as long as you are clear about what you are doing. Even registration of a Will is not compulsory, though it does give authenticity. However, if some changes are made in the future, the updated Will needs to be registered again so the first one isn't considered as the last valid Will. A Will remains the most popular method of passing on property and wealth in India.

    If you die intestate (that is without making a Will), your family will have to follow certain 'laws of succession', in deciding how to split your assets. It is a misconception to believe that all the estate automatically passes on to the spouse. Children and relatives can also stake claim to the property. Laws of inheritance and succession are diverse and complicated. This kind of division of assets is an expensive business as your family would have to hire the services of a lawyer and all the costs will be incurred out of your estate. So, in effect, your family will get a diminished share.

    The process of making a Will is very simple. It requires no stamp duty or even non judicial stamp paper although most of the experts advice that a Will must be registered, so that it is in safe custody. However, there are certain traps that you should watch out for. One common mistake that people make is failing to appoint witnesses and trustworthy executors younger than themselves. In case of Hindus, another common mistake is the failure to state if the property is inherited or not. The question of inheritance becomes important because no ancestral property can be assigned to any person. All rights on inherited property are acquired by birth. If there is no Will, the property will devolve according to the personal law of the deceased.

    Under section 2(h) of the 1925 Indian Succession Act, a Will is the legal declaration of the intention of a testator, who makes the Will, with respect to that person's property, to be carried into effect after the death of the testator. The provisions of this act govern Wills in the case of Hindus, Sikhs, Jains, Buddhists, and Christians. For Muslims, the Muslims Personal Law typically governs the Wills.

    A big potential problem with Wills could simply be not disclosing it, say experts. This often puts family members at loggerheads after the death of the testator because someone might believe they were promised an asset, but it doesn't show up in the written Will.

    A question is most often asked: Is making of a Will necessary? A Will is necessary if you want to specify to whom you want your assets to be distributed upon your death. If you have not executed a Will or other dispositional document, and if the distribution of assets not settled by the legal heirs amicably, a court will decide whom your assets be distributed to. Making a Will is an act of concern to ensure that the people you care or who care for you, receive the property you want them to have. If an intended legatee of your estate is unable to manage the assets, your Will can provide that the assets distributed to that legatee are to be placed in a trust, whereby the trustee, named in your Will, will manage those assets, and distribute them to the legatee as you direct in your Will.

    In a Will, you can also provide for specific bequests of your property, such as jewelry, antiques or family heirlooms, to certain individuals or charities. If you die intestate, the court will decide to whom your precious property be distributed. The main reason for making a Will is to say who you want to receive your property and who you want to raise your children if something fatal occurs to you. If you do not own property and you do not have minor children, you may still want to make a Last Will in case you have property or children in the future.

    Also, if you have unique desires or wishes, you may want to make a Last Will and Testament and state your wishes and desires in it. Some desires, such as wanting to be cremated in a certain way, have a certain type of funeral, or being buried in a certain place can be stated in your Last Will. It is possible, your funeral may take place before your Last Will and Testament is read. Therefore, it is best to tell your family and/or close friends of your desires and state them in your Last Will.

    In summary, making a Will is not legally required. However, making a Will is necessary if you want to have your say in who gets your property and who raises your children and if you don't have children but property, then who should be beneficial i.e. some individuals or institutions.

    Precautions For Making A Will

    • A Will must be signed by the Testator in the presence of at least two witnesses who have to attest the same. The full names and addresses of the witnesses should be clearly indicated in the Will. It would be better if one of the witnesses is a medical practitioner, but this is not essential. The practitioner should certify that the Testator is of sound mind (especially if the Testator is of an advanced age) and he or she should also note his or her registration number and degree (educational qualification). A witness should not be a beneficiary of the Will. A Witness should also not be an Executor of the Will. Also, the witnesses should be younger in age.
    • A Will can be hand-written or typed out. No stamp paper is necessary.
    • It is better to make a Will at a relatively younger age but not below 18 years. As and when events environments or changes in the family necessitate changes, the Will can be changed. One of the advantages of making a Will at an earlier age is that it can prevent unscrupulous relatives from contesting the legality of the Will made by a very old person on the basis that the person was not of sound mind when the Will was made.
    • A Will must always be dated. If more than one Will is made, then the one having the latest date will nullify all other Wills. In fact, it would be better to make a statement nullifying all other Wills.
    • A Will should be simple, precise, and clear otherwise there may be problems for the legal heirs. Sometimes relatives and others may try to distort the interpretation of the Will for their own benefit. It is always better to take the advice of a trusted advocate.
    • There should be an Executor of the Will who would be entrusted with the responsibility of ensuring that the assets are distributed according to the provisions of the Will. Sometimes more than one Executor may be required to execute the Will. The Testator (person making the Will) should take the prior consent of the person whom he or she wishes to name as the Executor.
    • Each page of the Will should be serially numbered and signed by the testator and the witnesses. This is to prevent substitution, replacement or insertion of a page or pages by persons with fraudulent intentions. At the end of the Will, the Testator can indicate the total number of pages in the Will. Corrections, if any, should be countersigned.
    • The Will may be kept in a safe place like a bank vault. The executor and the beneficiaries should be informed where the Will is kept. It is advisable to keep a signed copy of the Will with a trusted advocate. Duplicate copies of the Will may be made, signed by the Testator and the Witnesses and kept at separate places so that if one is misplaced, the other may be used.
    • Sometimes the value of certain items of the assets (example: value of share certificates) may fluctuate. In such a situation, it is better to mention the percentage of such item/s which should go to each beneficiary.
    • Whenever changes in the family circumstances or other reasons necessitate any change in the Will in the intervening period (from the time of making the Will to the time of demise of the testator), the structure of the Will can be amended. Even if there are changes in the nature of the property or assets, an amendment may be needed.
    • For making changes only in certain clauses of the Will, a Codicil (supplement) is to be prepared which should be read in conjunction with the Will and which has the power to make appropriate changes in the relevant clauses of the Will.
    • If there are too many changes in the Will, it is better to prepare an entirely new Will.
    • It is not compulsory for one to register a Will with the Registering Authority, but in case any property or asset is given to any charitable rganization, then registration should be done.
    • A person's Will becomes operative only after his or her demise. There is no restriction in the way a person can deal with his or her property even after writing the Will.
    • It can be in any language; no technical words need to be used.

    Registration Of Will

    Also, whenever the Testator bequeaths the immoveable property(ies), it is desirable that the Will must be registered with the Registrar since the concerned authorities do not mutate the ownership of immoveable property in favour of the beneficiary(ies). For instance, the Municipal Corporation of Delhi, in its circular No.Tax/HQ/A&C/2011/567 dated 8-8-2011 reiterated its earlier circular dated 11-8-2010 dealing with mutation procedure in case of unregistered Will stating that "in case of unregistered Will, the beneficiaries must be asked to obtain Succession Certificate/Probate from a competent Civil Court. Obtaining probate is not only cumbersome but very expensive process also whereas the procedure for registration of a Will is simple and the registration fee is nominal.

    The Doctors, Advocates, Bureaucrats, Politicians, or any section of society should never leave a legacy of the thorn of disputes for posterity. Therefore, it is never too early to make a WILL, it must be done as early as one could do it because 'a stitch in time always saves nine. The pandemic Covid has accentuated the uncertainty as it has taken away the lives of thousands of people without any discrimination for old or young. Hence, any young person should not believe that he/she will make a Will when he/she will become old. Needless to state, that a Will can be changed by the testator when there are major changes e.g., getting married, acquiring or selling of more properties, births in the family and deaths of beneficiary or the executor, changes in the value of properties etc. etc.

    The author is an Advocate practicing at New Delhi. Views are personal.

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