All you need to understand about Will Writing
Who will keep your assets and properties which you have acquired over your lifetime after you are gone! What is the law relating to will and testaments in India? What does will legally mean in India? What are the laws governing wills in India? What does a will contain? When is the right time to create a will? Should we wait for old age to strike our doors? How to create an online will? What is e-will? Doubts regarding registration of will in India? Is registration of will compulsory? How can I write my will myself in India?
A detailed article dealing with the drafting of a will in India.
What is will?
A will is the intention of the person (testator) and his plans of what he wants to do with the property which he had acquired throughout his life.
The following points explain the concept of will in India.
- It is a legal declaration of the intention of the testator (the person making the will).
- The declaration is with respect to the property of the testator.
- The declaration can be effective only after the death of the testator.
- The person making the will has the power to revoke the will at any time during his lifetime.
Who can make a will
Section 59 of the Indian Succession Act, 1925 speaks of person capable of making a will.
- A person of sound mind
- A person who is not a minor (above 18 years of age in India) are capable of making a will.
- Any person who thinks of bequeathing (giving their property) to the person who are near and dear to them and who are looking after their comforts.
What can be bequeathed in a will
A person cannot transfer those assets in a will which cannot be legally transferred. Example inherited property. A Hindu under a will can bequeath his portion of acquired property through inheritance and not the entire property. Hence, flats or car, jewellery, land, cash even obligations and liabilities can be willed.
How to make a will in India
There is no fixed format for writing a will in India. One does not even require proper court paper or format for the purpose of writing of a will. A will can simply be written on an A4 size paper. The only requirement for a will to be formally called a will is, signature or thumb impression of the person making the will along with signature or thumb impression of any two witnesses stating that this is your will.
Can any person draft their own will in India
Yes, any person me or you can write their own will in India. One does not require an expertise of an advocate to prepare a draft will.
There are few technicalities one should take care of while writing a will by themselves.
- Choose your words carefully with utmost caution. The fundamental rule is to ascertain the intention from the words used in the will. The surrounding circumstances are used only for the purpose of finding out the intended meaning of the words which have actually been employed.
- Make your intention clear. When there is a conflict while construing the language of the will, the court puts itself into the testator’s armchair and judge the situation while keeping the factors such as, position of the testator, his family relationship, the time when the will was drafted, whether the testator was taking his final breath or not and many more such surrounding circumstances are taken up by the court while resolving a conflict.
- In a will in India, subsequent clause prevails over earlier clause where two clauses in a will oppose each other or are irreconcilable. A will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such situation, the last intention of the testator is given effect. If in a will there are two inconsistent provisions, the latter shall prevail over the earlier. Illustrating this provision, If a man at the commencement of his will gives the house to A, and at the end of his will directs that the house shall be sold and proceeds invested for benefit of B, the latter disposition will prevail.
- While construing the will, all claims are to be harmoniously construed and must be given effect to.
- When is the correct time to make a will? A person can make a will just after his attaining of the majority but a will is the assets which a person accumulates over his lifetime! Therefore, the correct time to make a will is when a person is in his mid-50s. Since by then a person accumulates the majority of his wealth. One should take care of their assets early only. From a legal point of view waiting for getting too old for writing a will is not considered good. As court looks into various factors while interpreting a will, age at which will was declared is also one of the factors.
Appointing the executor after declaring the will
The next important step is to choose executors who will execute your will after you are gone. The executor or the trusted person will make it sure that the will is distributed as per the intention of the testator. The executor can be anyone, from the doctor to any lawyer or even a neighbour. The only important criteria is, the executor should not possess any claim over the will.
Registration of the will
Section 18(e) of the Indian Registration Act, 1908 specifies that the registration of a will is optional. The mere fact that registration of the will is made optional, it cannot be said that because of its non-registration, an adverse inference can be drawn.
Who can get the will registered
The testator or after his death the executor of the will can get the will registered.
Why it is advised to get the will registered
It is advised that a testator should get his will registered under the provision of Indian Registration act as it removes all the doubts of ingenuity revolving around the will. All the future ambiguities and hindrances are removed just by getting the will registered.
How to draft online will or E-will
With the advent of technology in the field of law, making a will has become easier that it was ever before. Now a person can even make an online will or e-will or digital will and it is of as much binding value as any ordinary will. It provides digital data of your assets, financial investments, properties and to whom one wants to give his or her property, money and other assets after demise. It is safe, secure and time-saving. An online will can be prepared in a time span of mere 30 minutes or even less. A Service provider such as NSDL, various banks including ICICI bank, The Federal bank provides this facility with a mere amount of INR 3000-5000.
Steps required for creating your e-will are
- Registration at the website of any service provider.
- Payment of required fees. This depends on from one service provider to the other.
- Filling of the online form provided and prescribed by these service providers.
- Filling in the details of your family members and your assets.
- Experienced lawyers will prepare the draft of your will.
- You will receive a rough draft online over your registered email id.
- Before drafting of your final draft, you will be given a notification for making alterations, if any to your rough draft.
- A final draft will be sent to your doorsteps with proper instruction as to the signing of the will by the testator and signing of two witnesses also.
Legal recourse when the will does not appear natural
There are situations where the testator is willing to give his property to someone who is not very close to them by blood or by matrimonial relation, nonetheless, they share a close sentimental relation. A will can be challenged in the court of law when it does not appear natural. If the bequest made in the will appears to be unnatural, then the court has to scrutinise the evidence with more care than usual. Hence, a will can be challenged in the court of law when it does not appear natural.
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