Money matters: Four things to keep in mind while making a will

The adage “where there is a Will, there is a way” can aptly relate itself to a situation where a will (the legal document) becomes an efficient technique by which assets are passed on to beneficiaries after the death of an individual.

A ‘will’ is defined as a “legal declaration of a person’s intention with respect to his property which he desires to be carried into effect after his death”. A will can be revoked or modified by the person executing the will at any point during his life time and thus, provides a reasonable degree of flexibility. A person who writes a will is known as a testator and a legatee/beneficiary is a person who inherits all or part of the estate of the deceased under the will. The Indian Succession Act, 1925 applies to wills made by any Hindu, Buddhist, Sikh or Jain. When there is no will i.e., if an individual dies intestate, the respective personal law of succession comes into play.

Although it is often emphasised that clarity and simplicity are the two principles on which a will must be drawn, we should also bear in mind some key points to ensure that the will is complete and accurately prepared.

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Execution and Attestation of a will

Every person executing a will should:

• Sign the will or it should be signed by some other person in his presence and by his direction, under certain conditions;
• Be attested by two or more witnesses, each of whom has seen the testator ( the person who has made the will) sign the will. However, it is crucial to note a legatee (heir) or his/her spouse must not attest a will as a witness as such a bequest to that legatee is void.

Invalid wills

A will can be declared invalid under the following circumstances:

• Wills obtained by fraud or coercion.
• Wills Void Due To Uncertainty - A Will may express some intention, but if it is vague and not definite, then it will be void for the reason of uncertainty.
• Wills void due to illegal or immoral conditions.

Forms & Formalities

Form of a will: There is no prescribed form of a will. In order to be effective, it needs to be properly signed and attested. The will should be initialed by the testator at the end of every page, as well as next to any correction and alteration.

Language of a will: A will can be written in any language. However, the words used should be clear and unambiguous so that the intention of the testator is reflected in his will.

Stamp Duty: No stamp duty is required to be paid for executing a Will or a codicil. A Will, therefore, need not be made on stamp paper.

Registration: The registration of a will is not compulsory. However, the registration of a will provides evidence that the proper parties had appeared before the sub-registrar and the latter had attested the same after ascertaining their identity. The non-registration of a will does not necessarily lead to any inference against the genuineness of a will. Whether registered or not, a will must be proved as duly and validly executed, as required by the law.

Enforceability of a Will & Probate

While making a will, a testator appoints a person as an “executor” entrusting that person with the execution of the will. Also, it is advisable to mention the succession plan of the executor is mentioned in the will as in the event of an absence of a successor executor, the legatees are required to approach the court for appointing an administrator.

A probate is a copy of a will certified by a court of competent jurisdiction. It proves that it is the last and final will of the deceased written on a particular date. Under law, a probate can be granted only to the executor appointed under a will. A probate is a must when the will includes immovable assets in Mumbai, Kolkata or Chennai.

Thus, a will is a document setting out the wishes of a person which come into effect post his death after following the due process of getting the same probated from a court of law, when required, which will be issued only if there are no objections and the will is not challenged by interested parties.

To sum up, a will ensures smooth succession and transmission of assets to the intended individuals. The disposal of assets can be done in an orderly fashion, reducing confusion and legal hassles that may arise when there is no will. It is imperative that individuals take the time to create a simple Will for their assets to ensure that their intentions are followed in a smooth and efficient manner even after they are not ther_e._

The views expressed in the article are personal.