This blog is written by Ruchi sinha.
WHAT IS WILL?
According to Section 2(h) of The Indian Succession Act of 1925, Will” means the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death.
A will only deals with self-owned property. The person whose wishes the will represents is the testator, his property subject to the will is the estate and the beneficiary of the will is also called the legatee.
In the case of “Maturi Pullaian v. Maturi Narasimham”, the court ruled that registration of a will is not compulsory. A will that is properly signed and clearly expresses the wishes of the testator will be legally valid even if it is not registered with the registrar. This exception falls under Section 18 of the Registration Act, 1908 which regulates the registration of official documents.
Requirements for a Will to Be Valid in India
- The person should be 21 years or older to write their will.
- Any adult with a sound mind and no sign of illness, including married women (except Muslim women), can create their will.
- The will can be written on plain paper rather than stamp paper.
- The will can be computer-printed or handwritten with the signature of the testator and witnesses.
- Register your will without fail.
- Ensure to register your will at the Sub-Registrar’s office.
- People with vision and hearing impairments can also make their will with the help of a person in a good state.
- While registering the will, ensure that you consult a professional lawyer.
TYPES OF WILL
1.) Privileged Wills
Section 65 of the Indian Succession Act, 1925 deals with the Privileged Wills.
Who can make privileged wills
1. Any soldier on missions or engaged in actual warfare
2. An airman on missions or engaged in actual warfare
3. Any mariner being at sea
4. A person who has completed 18 years of age
2) Unprivileged Wills
Section 65 of the Indian Succession Act, 1925 deals with the Privileged Wills.
Key Ingredients of Unprivileged Wills are as follows
1) Any testator not being any soldier, airman on a mission, or engaged in actual warfare shall execute an unprivileged will.
2) It should be signed by the testator.
3) The testator shall affix his mark to the will
4) The will shall be attested by two or more witnesses
What are the grounds for challenging a will?
A will can be challenged on the following grounds:
- Presence of coercion, fraud, or undue influence. components must be present in order to prove that the testator was under duration and that the will was not written with a clear intention.
- Presence of a suspicious nature. Will might contain some components that could reasonably be understood to indicate that there was some violation of it.
- Absence of testamentary intention or capacity. This means that the Will may not depict an intention on behalf of the testator to carry out the Will or execute it. Lack of testamentary capacity implies that the testator might not be of sound and reasonable mind while drawing the Will.
- No proper execution. may be possible to contest the validity of the Will if the testator’s signature and the signatures of the two witnesses are missing.
- Absence of knowledge. If the testator did not have knowledge of signing the Will then it can be taken to be a ground for challenging the validity of the Will.
DRAFTING OF A WILL
A will is not required to follow any set format or standard. The will may also be written by the testator themselves or it may be written after consulting with legal professionals.
Details of the testator
The name, age, address, and other details shall help in identifying who is making the will and when is it being drawn.
Declaration
It is very important that the testator declares that he/she is of sound mind and free of any coercion while drawing the will.
Details of the beneficiary
The details of who shall be benefitting from this will and to whom shall the assets be divided should be given as their name, age, address, and relation to the testator.
The executor of the will
It is very important to appoint an executor who would ensure that the will is carried out according to the directions provided by the testator. The name, age, address, and relation to the testator should be specified as well.
Details of property and assets
It is pertinent to list out all the details of the assets and properties that a testator has, and which are the ones that shall be covered in the will. He/she can also list out any specific assets that are there.
Division of share
You should list in full detail the share that each beneficiary has on the property or specify who will receive what. If you intend to give the asset to a minor, you should also list a custodian for the minor in the will.
Specific Directions
The testator should give directions in terms of executing the Will and should specify if there are any instructions
Witness
There should be a signature by the testator in the presence of at least 2 witnesses. The witnesses do not need to know the details of the will they just have to verify that the signature by the testator was done before them.
Signature
The testator should sign with the date on the will after the last statement.
KEY DETAILS THAT YOU SHOULD INCLUDE IN A WILL
“You don’t need to prepare a will in India for it to be valid and enforceable, but it is still advisable to do so to avoid complications later on and to facilitate the transfer of the testator’s assets at the time of distribution. You should register the will with the Government of India’s Sub-Registrar of Assurances for a modest charge.
On the official websites of your individual states, you can find the location of the closest sub-registrar office. At least two witnesses must also be physically present, and you must complete this drafting personally at the office. After verifying the conditional will, you may pick it up from the sub-registrar’s office at a predetermined period (usually a week after the date of registration). A copy of the will is then included in the sub-registrar’s records, and you can then lodge the original will with a bank or a lawyer.
Documentation Required
- Identity proof such as PAN card, Aadhar card, etc of the testator and the witnesses
- A mental fitness certificate from a qualified medical professional for the testator
- Passport-sized photos of the testator as well as the witnesses.
Benefits
Registration simplifies the legal heirs’ ability to transfer the property; otherwise, the beneficiaries may have to follow more complicated procedures to obtain will probate from a High Court, which consumes more time and money.
It provides an additional legal sanction and protects against any doubts such as to the validity of the identity of the testate. Since these details have been verified by the sub-registrar
Since the sub-registrar has a copy of the will on file, it provides security against unintentional alterations, theft, or any other form of tampering.
FAQs
1. Why is a comprehensive guide to will drafting important in estate planning?
A comprehensive guide to will drafting provides step-by-step instructions on creating essential estate planning documents, ensuring a smooth transition and financial protection for your loved ones.
2. Why should I consult an estate planning lawyer during the drafting process?
An estate planning lawyer offers expert advice on legal issues, potential disputes, and publishing issues that may arise, helping you avoid family disputes and ensuring your will complies with all legal requirements.
3. What are digital assets, and why should I consider them in will drafting?
You should consider digital assets, such as social media accounts and online services, in your will to ensure their proper transfer to the person responsible, preventing any legal arguments or disputes.
4. What is the probate process, and how does it relate to will drafting?
The probate process is the legal process of validating a will and distributing assets. A well-drafted will can streamline the probate process, reducing the risk of disputes and delays.
5. What are powers of attorney, and why are they crucial aspects of estate planning?
Powers of attorney grant someone the authority to act on your behalf. They are essential elements of estate planning, ensuring someone can manage your financial and healthcare affairs in case of incapacity.
6. How can a comprehensive guide help me navigate the step-by-step estate planning journey?
A comprehensive guide provides a list of steps and a step outline for drafting a will, making it easier to understand and accomplish the estate planning process.
7. What types of assets should I address in a will, besides financial assets and real estate?
Besides financial assets and real estate, a will should cover personal belongings, investment accounts, retirement accounts, and even digital assets like social media accounts.
8. What is the role of an estate administrator or estate attorney in the estate planning community?
An estate administrator or estate attorney plays a crucial role in asset distribution and resolving any potential disputes, ensuring an accomplished estate planning approach.
9. How can I ensure that my will covers all necessary aspects and potential future disputes?
A comprehensive list of assets, alternate clauses, and residuary clauses can help address any potential future disputes or changes in circumstances.
10. Can people use holographic wills as a valid legal document in estate planning?
Some jurisdictions may legally recognize holographic wills, which are handwritten wills. However, it’s essential to consult a law expert to ensure their validity.
11. What do Advanced Care Directives entail, and why do they hold importance in estate planning?
Advanced Care Directives specify your healthcare preferences in case of incapacity. They are essential to maintain control over your healthcare decisions.
12. How can a comprehensive guide assist in writing wills for complex assets like immovable property or ancestral property?
A comprehensive guide provides information on asset acquisitions, transfer of property rights, and beneficiary designations, ensuring that it correctly addresses even complex assets.
13. How can I protect my family’s financial future through will drafting?
By including life insurance policies, accidental life insurance benefits, and lines of credit in your will, you can ensure financial protection for your family in case of a life event.
14. Are there online forums or communities for estate planning where I can seek additional guidance?
Yes, you can find online forums and communities where estate planning enthusiasts and experts share their knowledge and experiences, offering additional support and insights.
15. What is the significance of a DRAFTING COMPREHENSIVE guide in estate planning?
A DRAFTING COMPREHENSIVE guide provides detailed information on the writing process, ensuring that you cover all aspects of will drafting for a straightforward estate plan.
16. How can a comprehensive guide help in preventing potential disputes among beneficiaries?
By providing clear instructions, alternate beneficiaries, and addressing potential disputes in advance, a comprehensive guide can minimize conflicts and ensure a peaceful asset division.
17. What is the role of a healthcare proxy in estate planning, and why is it essential?
A healthcare proxy designates someone to make medical decisions on your behalf. You must ensure that your healthcare preferences are honored in case of incapacity, and this is crucial.
