This Blog is written by Souvik Sen.
WHAT IS A WILL?
A will is a legal document that expresses a person’s wishes for the distribution of their property after their death. It is a revocable document, which means that it can be changed or revoked at any time before the person’s death. In India, wills are governed by the Indian Succession Act, 1925.
To be valid under Indian law, a will must be in writing and signed by the testator (the person making the will) in the presence of two witnesses. The witnesses must also sign the will in the presence of the testator. The testator must have the mental capacity to make a will at the time of signing it.
A will can be used to dispose of any property that the testator owns, including movable property (such as cash, jewelry, and vehicles) and immovable property (such as land and buildings). The testator can also use a will to appoint a guardian for their minor children.
If a person dies without leaving a will, their property will be distributed according to the Hindu Succession Act, 1956 (if the person was a Hindu) or the Indian Succession Act, 1925 (if the person was not a Hindu). These laws distribute the property of a deceased person among their relatives in a specific order.
There are a few important things to keep in mind when making a will in India:
- The testator must be of legal age (18 years old) and have the mental capacity to make a will.
- The will must be in writing and signed by the testator in the presence of two witnesses.
- The witnesses must also sign the will in the presence of the testator.
- The testator must be able to prove that he or she is the owner of the property that they are disposing of in the will.
- The testator should specify clearly who they want to receive their property after their death.
- The testator should also appoint an executor (a person who will be responsible for carrying out the terms of the will).
IMPORTANCE OF A WILL
A will is important under Indian law for the following reasons:
- It allows the testator to distribute their property in accordance with their wishes.
- It can help to avoid disputes among the testator’s relatives after their death.
- It can appoint a guardian for minor children.
- It can provide for the payment of debts and taxes.
- It can specify the testator’s funeral and burial arrangements.
If a person dies without leaving a will, their property will be distributed according to the Hindu Succession Act, 1956 (if the person was a Hindu) or the Indian Succession Act, 1925 (if the person was not a Hindu). These laws distribute the property of a deceased person among their relatives in a specific order.
However, the distribution of property under the Hindu Succession Act or the Indian Succession Act may not be in accordance with the testator’s wishes. For example, if the testator has a child from a previous marriage, the child may not receive any property under these laws.
In addition, if a person dies without leaving a will, their relatives may dispute the distribution of their property. This can lead to costly and time-consuming litigation.
Therefore, it is important to make a will to ensure that your property is distributed in accordance with your wishes and to avoid disputes among your relatives after your death.
Here are some of the benefits of having a will in India:
- You can choose who you want to receive your property after your death.
- You can appoint a guardian for your minor children.
- You can provide for the payment of debts and taxes.
- You can specify your funeral and burial arrangements.
- You can avoid disputes among your relatives after your death.
WHO CAN DRAFT A WILL?
- The testator (Person Making the Will). Any person who is of sound mind is at least 18 years old and is not under the influence of coercion, fraud, or undue influence can draft a will for their assets.
- Lawyer or Legal Expert. Many people choose to consult a lawyer or legal expert to help draft their will. Lawyers can provide valuable guidance to ensure that the will is legally sound and meets all necessary formalities.
- Will-Writing Services. Some professional firms offer will-writing services where trained individuals assist you in creating a will. These services can be a more cost-effective option compared to hiring a lawyer.
- Online Will-Making Platforms. There are online platforms in India that provide templates and guidance for creating wills. While these can be convenient, it’s essential to ensure that the online service complies with Indian legal requirements.
- Public Trusts and Charitable Organizations. In some cases, individuals choose to involve public trusts or charitable organizations in drafting their wills, especially when they plan to leave a significant portion of their assets for charitable purposes.
- Notary Public. A Notary Public can assist in the notarization of a will, which involves certifying the authenticity of the will’s signature. However, a notary is not typically involved in drafting the will’s content.
ON WHOSE FAVOUR A WILL CAN BE DRAFTED?
In India, a will can be drafted in favor of various individuals and entities, subject to certain legal restrictions and requirements. Here are common beneficiaries for whom a will can be drafted:
- Family Members. A will can be drafted in favor of family members such as spouses, children, grandchildren, parents, siblings, and other close relatives. You can specify how your assets should be distributed among them.
- Friends. You are free to include friends as beneficiaries in your will. You can leave specific assets or bequests to friends who have been important in your life.
- Charities and Nonprofits. Many people choose to allocate a portion of their assets to charitable organizations, trusts, or nonprofit entities. These beneficiaries can include religious institutions, educational institutions, medical charities, and more.
- Domestic Help and Caretakers. Some individuals may wish to provide for their domestic help or caretakers who have been part of their household for many years.
- Business Partners. If you are a business owner, you may want to specify how you will distribute your business interests or shares among your business partners or co-owners.
- Trusts. You can create a trust through your will and name beneficiaries who will benefit from the assets held in that trust. Trusts can be used for various purposes, including providing for the welfare of minor children or managing assets for a specific purpose.
- Specific Individuals or Organizations. Your will can specify beneficiaries who are not part of your immediate family, such as mentors, godchildren, or cultural institutions.
PROCEDURE OF DRAFTING A WILL?
To draft a will according to Indian law, you will need to:
- Decide who you want to receive your property after your death. This is called the distribution of your assets. You can choose to distribute your assets to your spouse, children, other relatives, friends, or charities.
- Choose an executor. The executor is the person who will be responsible for carrying out the terms of your will after your death. The executor should be someone you trust and who is capable of handling the task.
- Write down your wishes in a clear and concise manner. Your will should be easy to read and understand. Be sure to specify who you want to receive each of your assets.
- Sign your will in the presence of two witnesses. The witnesses must also sign the will in your presence. The witnesses should be independent individuals who are not beneficiaries of your will.
- Have your will registered with the Sub-Registrar’s Office. This is not mandatory, but it is advisable to do so as it can help to avoid disputes after your death.
ESSENTIALS OF A VALID WILL
Essential to follow certain legal formalities in India to ensure its validity. These formalities include:
- The will must be in writing.
- The testator or someone authorized by the testator should sign it in their presence.
- The testator should make or acknowledge their signature or mark in the presence of at least two witnesses.
- The witnesses should also sign the will in the presence of the testator.
- The witnesses should attest the will by signing it.
CONCLUSION
In conclusion, a will is a vital legal document that allows individuals to express their wishes regarding the distribution of their assets, the care of their dependents, and the appointment of an executor. It ensures peace of mind by following one’s intentions after their passing. By designating beneficiaries, a will allows for the orderly transfer of assets, minimizing potential conflicts among heirs. It also enables individuals to support charitable causes, provide for domestic help, and allocate business interests.
However, it is crucial to follow legal formalities, such as signatures of witnesses and the testator, and to consider any legal restrictions that may apply. Seeking professional advice ensures that professionals draft the will in compliance with applicable laws, safeguarding the interests of both the testator and beneficiaries. Ultimately, a well-crafted will is a cornerstone of responsible estate planning, offering clarity, protection, and a legacy that reflects the testator’s intentions and values.
