The death of loved ones brings in pain and sorrow, but when one has to also sort out emotionally draining, mentally harassing legal issues that too related to the making of a Will document by the person gone from the world. When Riya Sen lost her father, calling up people to confirm about the property was the last thing on her mind, so she was dumbfounded when she heard from neighbours back home in Calcutta that their family home had been occupied by some people claiming to be relatives.

While Riya had been thinking of getting her father’s property transferred in her name, it got delayed. And now she found herself in a situation where she had to fight the issue of a false Will. The relatives claimed they had a Will document made by her father, declaring the assets to be in their name.

The importance of the Will is often not fully understood –especially in a country like India where it is sometimes almost considered inauspicious to talk about a document related to one’s death. However, people would be doing their family a favour if they realized that making a Will document leaves the family in a better situation.

In an earlier blog, we had shared basic information about the Will document. There are terms that are related to the document; things that need to be understood. We do know that there will be the person who makes it, and the executor and the nominees. Besides the main document, there is also the addendum or the codicil. In making a Will, an addendum is made to add names or other facts.

Sometimes the Will does not name an executor. In such cases, the court can issue a ‘Letter of Administration.’ This and other such facts are explained below:

  • Letter of administration is a certificate that is granted by a court to an administrator authorizing him or her to administer the property of the deceased if the Will has NOT named any executor.
  • Probate is proof that the Will that has been made is valid. It implies that the copy of the Will is given to the executor along with a certificate granted by the court. So the Will copy and the copy of the administration as issued by the court together are known as the Probate. It guarantees the validity of the Will.
  • Execution of the Will can be carried out after the court grants the probate. If there are no objections to the Will, then the Court will grant the Probate. The Will document comes into force only after this.
  • Registration of the Will is necessary with a nominal registration fee. For this, the testator has to be present.
  1. Registration has to be done with a nominal registration fee with the testator being present in the court along with the witnesses.
  2. Just the signature of the Will is fine for the Will to be considered registered.
  3. The registration is substantial legal evidence that the proper parties had appeared before the registering officers and that the officer had attested the Will after ascertaining their identity.
  4. A Will must be proved as validly executed since it is a requirement of the Indian Succession Act.
  5. After a Will gets registered, it is placed in the custody of the Registrar, and therefore it cannot be tampered with, destroyed, mutilated or stolen.
  6. The document is then only to the testator himself or, after his death, to an authorized person who produces the Death Certificate.

 

  • Forms & formalities to make a will are not very rigid. Although the making of a Will document does not require a particular form, it does need to be properly signed and attested.
  • The language of a Will can be any. Technical words need not be used in a Will. The terms used in the Will should be very clear to ensure that the intention of the testator gets reflected in his Will.
  • Stamp Duty is not required to be paid for executing a Will or a Codicil. Also, it is not necessary for the Will to be made on a stamp paper only.
  • Attestation of the Will is required by two witnesses who are supposed to witness the testator making the Will in its final shape. As per Hindu Law, a witness can be a legatee. Under the Parsi and Christian law, a witness cannot be an executor or beneficiary. A Muslim is not bound to get his Will attested if it is in writing.

 

Most importantly, an individual needs to remember while making a Will that there is a separate, exclusive Will required for his Indian property if he is an NRI. If you make a Will in the country of your residence it can be valid for your assets there – for you to be able to either validly pass on your assets to others in India, the document should be framed and based there too.