A “will” is a formal declaration or legal instrument that an individual creates during their lifetime to direct the disposition of their possessions in the manner that they desire. By creating a will, the surviving family members and heirs can inherit the assets in the manner that the deceased desired. In India, will facilitate the peaceful division of property among members of intricate family systems, obviating the need for litigation. Since wills are legal documents in India, there is no rigid format requirement. A handwritten document can be referred to as a will.
Essential elements of a valid will:
According to Indian will law, which is outlined by the Indian Succession Act, 1925, a variety of fundamental components include the following:
- A person must be at least eighteen years old and of sound mind in order to write a will. This prevents minors and those who are mentally incompetent from drawing wills.
- Drawing a legal will is prohibited for anyone who is incapable of making a sound decision or who is mentally impaired due to disease or alcohol and is unable to comprehend the implications of their actions.
- Any portion of a will that was coerced or encouraged to be produced by threats, force, or other means and has not been drawn while writing a will with free consent is invalid and not enforceable by law.
The importance of writing a will:
It is impossible to overstate how important it is to write a proper will. In addition to making estate planning more effective and efficient, a will helps the deceased’s family members avoid needless arguments and legal disputes. Additionally, it assists in protecting the rights of the deceased’s legal heirs against any surviving family members or claims who might want to assert their own portion after death.
Setting the nominee apart from the beneficiary is the primary function of a will. A nominee is a person who possesses property prior to its ultimate distribution in accordance with the terms of the will, whereas the beneficiary is the person who really obtains the property. A will facilitates the testator’s effective selection of a nominee for the distribution of assets as per the will.
Having a will in place to help arrange for finances and guardianship of dependents or minor children is one of its main advantages. In the event of an unfortunate parent’s death, the courts have the exclusive authority to distribute assets and designate guardians in the absence of a will. Nonetheless, parents or single parents might name guardians and set aside money for their kids’ futures and education by utilizing a will.
Challenges Arisen Without Will:
Since the significance of having a will cannot be overstated, people face the following problems when there are no wills:
- The lack of a legitimate will exposes the deceased’s family to unwarranted legal risk in the event that there are disagreements over how to divide up the family’s assets.
- The likelihood of distant relatives or creditors taking advantage of the deceased’s possessions is high.
- Family members are frequently unaware of the deceased’s whole asset portfolio, which prevents them from using the assets after his death.
- There is a chance of identity theft if the dead have a social media presence and no management appointment has been made.
Legal requirements to remember while drafting a will:
When drafting a will, it is important to ensure that it meets the legal requirements of the jurisdiction in which it will be executed.
1. Different jurisdictions may have varying legal requirements for drafting a will, so it is crucial to research and understand the specific rules that apply in your area.
2. The witnessing and signing of a will by individuals who are not beneficiaries can help ensure its validity, as it provides independent verification of the testator’s intentions.
3. Mental capacity is an important factor when creating a will, as it ensures that the individual understands the implications of their decisions and prevents potential challenges to its validity on grounds of incompetence.
Common Mistakes in Will Writing:
1. Importance of using plain language in will writing: Discuss the significance of avoiding legalese and complex vocabulary to ensure that all parties involved can easily understand the contents of the will.
2. Potential challenges due to ambiguous terms: Highlight how unclear or confusing language in a will can lead to disputes among beneficiaries, executors, and other interested parties, potentially causing delays and additional legal costs.
3. Best practices for clarity in will drafting: Offer practical tips and guidelines for testators and their solicitors.
Second, wills are frequently left out of date. This renders the will outdated and vulnerable to legal issues because it still lists newly acquired or disposed of assets. Tenancy rights are transferred more frequently than they should be since it is illegal to do so. This makes it challenging to carry out.
WHAT TO TAKE CARE OF –
While selecting how to distribute your estate takes time, there are five things you should consider before making a will.
Find the worth of your estate. Together with your debts, which include any outstanding credit card loans, mortgages, and bank overdrafts, you should also compute your total assets, which include your property, savings, and investments.
Divide your estate: After determining the estate’s value, consider who should receive what shares. It’s also a chance to plan for the unexpected, such as what would happen if one of your designated beneficiaries passed away before you.
Select your delegates. Choosing an executor for your will is a crucial step in making sure your assets are handled as you intended.
Compose a will. You can now put the finishing touches on the will in writing. We’ll go into the several options for getting a will later in this article.
Last but not least, a legitimate will needs to be signed in front of two separate witnesses. Sign and store your will. Next, you must store the will, either at home or somewhere else. or safely with the Probate Service, lawyer, or bank.
What to include in a will:
The likelihood of misunderstanding and miscommunication is decreased the more specific instructions you provide in your will. You should make sure to address the following areas:
1. Details about your assets: In your will, you can specify the different assets you possess, such as property, investments, and valuable possessions.
2. Beneficiaries and inheritors: It’s important to mention who should receive your assets after your passing. This includes naming beneficiaries for specific items or funds.
3. Guardianship of dependents: If you have children or other dependents, you may want to designate a guardian in your will to ensure their care and well-being in case something
Can you change your will?
In general, it’s a good idea to review your will every five years to determine if anything has changed or if it needs to be updated. A revision of your will may also be necessary following significant life events such as marriage, divorce, or the birth of children.
A codicil, an extra document that must be signed and witnessed in the same manner as the main will, is the sole means to make minor changes to an existing will, such as altering the executor. A new will can also be used to replace an old one. To guarantee that, following death, only the most recent will is taken into account, you should destroy any previous wills and include the phrase ‘All other wills that pre-date this are null and void from this date’ in the new will.
Adv. Khanak Sharma (D\1710\2023)