What is WILL?
Will is a legal document wherein a person (“Testator”) sets out how they would like their property to be distributed after their demise. The Testator delineates all or a portion of their property and assets, and expresses how the same shall be dealt with, who it is going to be bequeathed to, and may appoint an executor to ensure that the WILL is honored and executed in the manner stated in the WILL.
There are three essentials to a Will; first, there must be a legal declaration of the intention of testator, i.e., the person who makes the Will. Secondly, the declaration of intention must be with respect to the testator’s property. And thirdly, the document should express a desire that his intention must be carried into effect after his death.
Why it is advisable to make a Will?
Often, complications and disputes may arise between the legal heirs, over the property of a person after their demise, where no WILL of the deceased can found, either due to absence of the WILL or on account of the WILL not being traceable or existence of more than one WILL, conflicting in their content with each other. A lot of people put off making their WILLs as they do not contemplate or comprehend that life can be uncertain for any person, young or old. In many cases, properties and assets earned by a person during their lifetime can be lost to their children, intended beneficiaries and legal heirs, due to the absence of this simple legal document. It is thus advisable that everyone, who has the legal capacity to make a WILL and has any assets or possessions, should undertake formulation of WILL, which requires a very simple process.
Which language to use for making WILL?
A Will requires no technicalities of any specific language or words. Any language which may be understood by the Testator may be used. The only care to be taken is that the wording of a WILL may be unambiguous and clear so as to clearly crystallize the Testator’s intention.
Who can make a Will?
As per law, any adult can make a WILL, who is not of an unsound mind and who is not suffering from any sort of coercion, undue influence or fraud. These are the basic requirements of the legal capacity to make a WILL.
How to make a Will?
First of all one has to ensure that these steps are followed.
Step 1: Format: A WILL does not require any particular format. The document can be written in a simple language, wherein the Testator (i.e. the person making the will) can record his intention to bequeath his stated properties and assets to the named persons or institutions.
Step 2: Signature of the Testator and Witnesses: The document ought to be signed by the Testator at the end of every page of the document, and also signed or initialed against alterations or corrections, if any. In most of the jurisdictions, it is required to get the document attested by two witnesses. There is no need for the witnesses to read the contents of the WILL. The witnesses are required to attest for the sole purpose of testifying that they had signed the document in the presence of the Testator, so that it can be ascertained later (in the event of disputes over the validity of the WILL) that it was the Testator who had asked them to append their signatures on the document in his presence and that the Testator had appended his signatures on the document in their presence as well.
What are the General Considerations that has to be kept in mind while drafting your WILL?
Will being an important document, it is advisable to keep in mind certain points while drafting your will. First of all is that, the will should be specific, detailed, unambiguous and not vague. Secondly, while making a Will, remember to include all intended beneficiaries otherwise in absence of clear names and clear intentions, it could lead to invalidation of Will. Thirdly, remember to dispose everything you have. Once you are opting for testamentary disposal of property and assets, you need to make sure that all your assets, whether movable or immovable, tangible or intangible, are listed properly and distributed properly. Fourthly, do not forget to appoint an executor. Though appointment of an executor is not mandatory but in case of any dispute regarding the distribution of property, it is the executor who derives authority from Will and will distribute property according to your intentions. Fifthly, do not forget to revise you Will especially when some important changes like Marriage, divorce or parenthood has become a part of life. Last but not least, is to have valid witnesses. Remember, you can make beneficiary as the witness but there are chances that it might create a presumption of duress or coercion. So it is advisable to have independent witnesses. The competency of witnesses is discussed below.
Who should be the witnesses?
Once you have completed the drafting of your Will, you require it to be attested by two witnesses. These witnesses should actually see the testator (one who is making will) sign the will and thereafter they are require to attest the same. It is recommended that witness are independent ie neither they are beneficiaries nor the executors. Though there is no such rule which exempt the beneficiaries or executor to be a witness, but it is more advisable for them to independent in order to avoid any possibilities of futuristic dispute.
For being a witness, a person:
- Should be an adult i.e. of 18 years or more.
- Should be sound mind while signing the document.
- Preferred if witnesses are younger than you, as it will increase probability of their presence in case Will is questioned after your demise.
- Should be able to confirm visually, therefore a person who is partially or fully visually impaired cannot be a witness.
Is the WILL required to be stamped or registered?
Registration of Will is a process which actually differs from country to country. But in India, registration of Wills is not a mandatory requirement. Since this document does not fall under compulsory registrable document, it becomes the sole wish of testator to register it or not. Of course, there are certain pros and cons of registration and non registration of Will. By registering the Will, the Will is placed safely with the registrar/ sub registrar and therefore cannot be changed, stolen or tampered with, whereas, in case of non registration, though it does not affect the genuineness of Will but somehow the probability of disputing the Will increases. While on the other side, the non registration procedure is quite simple, economically efficient and fast whereas registration of Will is a lengthy procedure and takes time, is somewhat costly than non registration.
Therefore it depends on complexity of your Wills, if you feel that chances of disputes are likely of high nature in your circumstances, you should go registration of Will as this procedure becomes an evidence to the fact the Will is made by you though your free consent.
What procedure do we have to follow for registration of Will?
- The Will has to be registered in the office of sub registrar or registrar, established by the state government in accordance with the jurisdiction of where your majority part of property is located.
- Stamp duty has to be paid in accordance with the Will.
- Witnesses and Testator (who is making the Will) should go in person to registrar office.
- The registrar after confirming your identity will execute the Will and can give to executor, Solicitors, or can keep with himself in safe custody, depending upon your choice.
Can we amend the Will?
Yes, we can amend or modify the Will. Moreover there are no restrictions as to how many times we can amend the same. A WILL can be changed any number of times, but the last WILL made will be considered, while the previous ones will be treated as overridden. Alternatively, instead of re-writing a WILL, a Codicil may be executed, for the purpose of adding, altering or explaining the dispositions stated by the Testator in their WILL.
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