Stay Safe-Know more about Making a Will

will

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.

If you care enough you WILL say it

The Power of the will

Leave no hassles for your inheritors

A large number of property disputes arise simply because a lot of people avoid making a Will. For the simple want of a clear document specifying the way a person’s assets would be distributed after he is no more, a lot of hassles are faced by the people left behind. This document forms the basis for the just division of property and other assets of the deceased.

Simply stated, a Will is a vital document that any person needs to have to declare how his assets will get divided and distributed after his death. This can be formulated after proper legal advice so that there are no errors in the statement put forth. Making a Will is a method he has of ensuring that his wishes be respected after his death. The absence of a Will can lead to complexities for the family later on. This legal document can prove to be a great help in avoiding conflict for the family after the person’s demise.

If a person tries to write on his own or execute writings that he or she has prepared on his own, it can lead to certain problems during the time of implementation after the death of the person. Post-death, the property of any individual can be distributed in two fundamental ways:

1)    As per the law of natural succession when the situation is ‘intestate’ i:e no Will has been made

2)    Through a Will i:e ‘testamentary.’

There are certain characteristics of the Will document that need to be understood:

  • A Will is a Legal Declaration, meaning that the papers of the Will should be in conformity with the law and also must be executed by an individual who is legally competent to make the Will. More so, it should be signed and attested as required by law. Sound legal advice is needed for making a Will, and the matter can be taken care of by a competent law firm.
  • The Will document relates to the distribution of the property or other assets of the person who is making it.
  • It will come into force only post-death of the Testator. It doesn’t give any right to the inheritor till the person making the Will is no more.
  • It can be revoked any time during the lifetime of the person making it – also called the ‘testator.’

Who can make a Will?

The Indian Succession Act (Section 59) says that any person with a sound mind is capable of making a Will. However, it cannot be done by lunatics & insane individuals and minors i.e. below 18 years of age. It is advisable to make the Will with the advice of a law firm.

The document can be even be made by persons who are deaf or dumb or blind provided they get to know and understand what exactly they are doing by the Will. If an ordinarily insane person makes a document while he is of sound state, it would still be considered a record to be considered. However, an intoxicated or ill person who does not know what he is doing cannot make it.

Other trivia you need to know-

  • Every Will would require an Executor that is, the person authorized to administer the property of the person making the document.
  • The stipulation for the executor can be either in the primary Will document or the Codicil (the addendum, in other words).
  • This addition is written in the context of the Will, explaining, altering or adding to the disposition therein.
  • There are situations where the main testator wants to change the names of the executors or nominees – this can be done by making a codicil in addition to the Will.
  • Like the primary document, the Codicil also needs to be in writing and be signed by the Testator and attested by two witnesses.
  • Contrary to what people assume at times, the Will is not the same as the ‘nomination.’ A nominee only acts as a trustee.
  • Sometimes, the beneficiary and the nominee are the same. This is usually a better situation to have since it prevents disputes.
  • Attestation is vital. Two or more witnesses can attest the document.

Making a Will is crucial and the document is needed for clarity and avoidance of disputes. More on the specifics of the procedure etc. in the following days.