Will and Testament - Procedure and Drafting
Will is a legal document which describes the wish of the testator (person making a Will) for distribution of his properties after his death.
Death is inevitable, but the time is not known. Unforeseen events like Corona Virus may lead to unexpected troubles, and protecting our loved ones from hardships becomes a priority. If we can arrange financial assets for our children, there is nothing like that. It is imperative to write a Will to avoid any fight among siblings for sharing the wealth and the financial assets.
Recommended reading: Contesting a Will – facts and details
Requisites of writing a Will
The Law relating to Will is found in the Indian Succession Act, 1925. If a person dies intestate, the disposition of his property takes place as per Succession laws.
- A
Will can be prepared by anyone above 21 years of age and of a sound mind.
A beneficiary can be any person capable of holding property. It can be a
minor or a company.
- A person can dispose of his self-acquired property. For ancestral property,
the rules are different. A person can only make a Will of his share in the ancestral property.
- There
is no defined format of writing a Will.
All it should contain is a declaration that Will is being made out of own free Will and in full senses. Next comes, the details of the properties,
immoveable, moveable, bank balances, important documents etc. Then the ownership part .e. who will own what. In the last, the testator has to sign the Will in the presence of two independent witnesses.
- The
language should be simple and unambiguous and must reveal the intention of the testator. The document is interpreted as a whole.
- Registration
of Will is not compulsory. However, it is better if it is registered. The registered document is always considered more authentic than an unregistered one.
- Revoking
a Will can be done at any point of time during a testator’s lifetime. It can be altered and modified. It is done through an instrument called
Codicil. If the testator has mentioned that it is his last Will, it implies that the earlier Will if any stands revoked.
- The testator may appoint an executor. (a person who is responsible for the execution of the Will). He has the authority/power for disposition of the property as per the tenor of the Will. The executor can be a beneficiary also.
- In some areas, the probate of a Will is necessary. Probate is an authority of the Court given to the executor named in the Will to implement the instructions of the testator. Probate is defined under the Indian
Succession Act. It is a copy of the Will with a seal of the Court. It is handed to the executor to manage the estate of the deceased.
- The Court issues a letter of administration and not probate, if no executor is named in the Will. An administrator is appointed to administer the dead person’s estate.
Benefits of writing a Will
People are generally not comfortable when it comes to writing a Will. But it is wise and practical to have a Will made in time as:
- It is one way to secure the interests of the testator.
- It helps to avoid disputes and litigations among siblings/legal heirs for the distribution of assets.
- The Succession laws are complex. A Will makes the disposition of property easy.
- The property will pass on to the intended heirs. An owner may want to exclude any legal heir whom he considers unworthy of inheriting his property.
- A person may want to gift his property to an intended beneficiary who is not in the line of his legal heirs.
- It helps to invest money in any trust, or utilize the same for social purposes, donation, scholarship etc.
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