Wills

Recently, a family member shared a video in the family WhatsApp group about the challenges of transferring a property after a parent's death. The speaker emphasized the importance of having a Will. This prompted several older members of our family to reach out for more information on wills and estate planning. Our discussion with these relatives led me to pen this blog post on "Wills".

What is a Will - A Will is a legal declaration by a person stating how and to whom his belongings have to be given after his death. A will is normally a written document, though there are oral Wills which are allowed (privileged) to be made by members of Armed Forces under certain circumstances.

Who can make a Will - Any person who is an adult and who owns any movable or immovable property, is required to make a Will. However, many people have a notion that to make a Will one requires to have huge properties or huge bank balances and other assets. They do not think of what would happen to the whatever little property or assets they have, if they die without making a Will. Many people also have a notion that having nomination in an asset is sufficient. Nomination is only a right to receive. But it is a Will that decides who will ultimately own the asset. It has been held by the courts that a nominee is a trustee who receives the asset on death of the original holder and is to hold it on trust till the rightful owner is identified.

Most people tend to avoid or postpone making a will, probably because they do not want to think about their death.

What if will is not prepared – If a person dies without making a will (referred to as “intestate” in legal language) his assets gets distributed to the legal heirs as per his personal laws or as per the Indian Succession Act. If a person wants his assets to be distributed to any other person or organisation, maybe a neighbour or a servant, who has taken care of him in his old age, and this person dies without making a will, this neighbour or servant will not be a beneficiary as per the personal law or Indian Succession Act and would therefore not get anything even though it was the intention of the person to bequeath something to this neighbour or servant.

 

When Personal Law applies and when Indian Succession Act applies – In the earlier para we have seen the terms personal law and Indian Succession Act being used. In case of Hindus, Sikhs, Jains and Buddhists dying without making a Will, the Hindu Succession Act applies. In case of Muslims dying without making a Will, the personal succession law applies. In case of any persons other than above dying without making a Will, the Indian Succession Act applies.

The personal laws and Indian Succession Act lay down a specific formula as per which the assets are to be distributed if the person dies intestate.

Parties to a Will - A person making the Will is called a Testator, persons who get the property (as per the Will) after the demise of the Testator are called Beneficiaries and a person who is given the responsibility of administering the Will is called an Executor. There is another party who forms a very important part of the Will, and he is the Witness.

How to make a Will – Though not mandatory, it is preferable to consult a qualified Estate Planner or a lawyer to make a Will, as they can guide you properly. There are certain points to be kept in mind when making a Will.

Important components of a Will - A Will should be preferably made by a single person, the Testator. Preferably his or her pet name or alias should be mentioned. It is advisable to include his religion. The age and the present and permanent address will be the next item in the Will. Normally a statement is included stating that this is his last Will and that he has revoked any earlier Wills made by him.

The second para gives the details of Executor or Executors who are to administer the Will.

The third para can give the details of family members. If any family member is to be specifically excluded, it is preferable to mention that, as this may be helpful to the beneficiaries to point out the intention of the testator in case of any litigation at a later date.

The next para would be the operating part of the Will. Here the Testator lists down the properties and assets he owns and indicates to which beneficiary which asset or proportion thereof has to go. This is normally followed by a residuary clause, where the Testator states that any asset that is not covered in the earlier paragraph has to be distributed to such and such persons in such and such proportion.

The final para would be where the Testator dates and signs the Will. This is normally done immediately after the date without leaving any space in between.

Most importantly, the Will has to be signed by two witnesses who are legally competent to contract. These two witnesses have to see the Testator signing the Will and have to sign in his presence. The Witnesses need not know the contents of the Will, it is sufficient that they see the Testator signing it and sign it themselves as having witnessed the Testator sign it.

If a person wishes to make any minor change to his will, he can execute an addendum to the Will, which is called a Codicil.

The content made available in this article is for general informational purposes only. While every effort has been made to ensure the accuracy and completeness of the content, it should not be considered as a substitute for professional consultation. 

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