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This article deals with the process involved in drafting and registering a Will with a detailed analysis of the steps involved. It describes the various advantages of writing a Will, including the essential elements, format and the legal procedure, that is the best safeguard against any kind of confusion or disagreements between parties.
I. Meaning of a ‘Will’
Will is “A legal declaration of a person’s wishes regarding the disposal of his or her property or estate after death” or in other words, it is a written instrument legally executed by which a person makes disposition of his or her estate to take effect after death.
II. Advantages of having a Will
A. Legal Protection- A will is the most important thing one can do for themselves, and for their family. A will legally protects the spouse, children, and assets, and also spells out exactly how one would like things handled after he or she have passed on.
If a person dies without making a will, then all their class one legal heirs (mother, spouse and children) will have equal rights to their assets. In the absence of class one legal heir, class two heirs (father, grandchildren, siblings and their grandchildren) can stake a claim.
B. Choice of Nomination- The most important advantage of making a will is that the property a person passes on, is distributed among the inheritors according to his or her wish. He or she will decide on who will get what and how much of it, even though he or she is practically not present.
Everybody wants to acquire more wealth. If a person dies without making a will (intestate) and if there are many inheritors, then the deceased person’s family usually ends up in bitter quarrels with regard to property sharing. No one would want their wealth to be a reason for their family struggles. Therefore, by making a will, one can rule out any anticipated disputes among the family members after one’s death.
By making a will, one can not only distribute the property to their inheritors but can even make provisions to a close friend, their children under the age of eighteen, their guardians, children from past relationships, a loyal servant or even your cherished pets. Having a will allows one to appoint the person they want to raise their children with or, better, make sure it is not someone with whom they do not want to raise their children.
In some cases, if there is no will, it would be very complicated to share the property of a deceased person. However, if the property is inherited by the deceased’s father, then it would be passed on to their children, as per the law of inheritance.
C. Tax Reduction- Will allows a person to minimize their estate taxes. The value of what they give away to family members or charity will reduce the value of their estate when it is time to pay estate taxes.
D. Preferential Disinheritance- One can disinherit individuals who would otherwise stand to inherit. Most people do not realize they can disinherit individuals out of their will. One may wish to disinherit individuals who may otherwise inherit his or her estate if they die without making a will, because wills, specifically outline how one would like his or her estate distributed, there is every possibility that the estate may end up in the wrong hands or in the hands of someone he or she did not intend (such as an ex-spouse with whom the deceased had a bitter divorce).
E. Hidden Assets- Not everyone would have shared details of all the assets they hold with their children or spouse. Many people prefer to keep their income sources hidden in order to escape tax payments and there are chances that such assets may not fall into the hands of its rightful owners after the death of those individuals. But if they have made a will and mentioned all the details, then none of their hidden assets will go unclaimed after their death.
III. Essential elements of a will
The six essential elements of a valid will are:
- As a writer of the will, or testator, the person must be at least eighteen years of age.
- The testator must have testamentary capacity, i.e. he/she must state in writing that they are of sound mind and are writing the will of their own accord.
- A statement declaring the document as their will must be included.
- An executor should be appointed.
- The document must contain at least one provision that names a personal guardian for a minor child and/or at least one provision providing for the allocation of your estate.
- If the will is not written in the testator’s handwriting (i.e., typed), the testator must sign the will and it must be attested to by two witnesses who are not beneficiaries and who saw the will signed by the testator.
The document becomes legally enforceable only if it is written and signed by the testator and at least two witnesses who have seen the testator signing the will. It comes into effect only after the death of the testator and has no significance during the testator’s lifetime.
IV. Format of a will
While legal procedure in India of making a will is very simple but certain points should be considered to avoid any ambiguity in future. A judicial stamp paper is not a compulsion to make a will as a will can be made on a plain paper as well.
One could write a will by themselves also but the following points should be considered while preparing the will format:
(i). Personal Details
The first paragraph should always contain the testator’s name, father’s name, residential address, Date of Birth etc., and a clause which states that the will has been made in full senses and without any kind of pressure.
(ii). Details of Assets & Beneficiaries
This is a very important section. List of all immovable properties with clear addresses and their current value should be specified. The testator should also mention the movable assets like bank deposits, insurance, units of mutual funds etc. The name of the beneficiary(ies) for each asset, for example, for Mutual Funds, the Folio number, should be mentioned as well.
After mentioning the above details, the will should be signed by the testator.
(iv). Signature of Witnesses
The will should then be attested by a minimum of two witnesses. The witnesses should also mention their father’s names and addresses.
(v). Executor’s Details
‘Executor’ refers to the person who implements, i.e. executes, the will after the death of the testator. Hence, the executor’s name, address, relationship with the executor, age etc., should be clearly mentioned. However, the will can also be executed in front of the Local District Registrar and sealed in their presence.
After signing the will in the presence of two witnesses the will should then be handed to the trustworthy person. The date and the place should be clearly mentioned at the bottom of the will and all the pages must be signed by the testator and at least two witnesses.
The Will format should also contain the following clauses:
- Bequeathing of property from the period of death to the executor.
- Bequeathing of property to the members with their names and shares each would receive.
- Clarification regarding whether the executors are to pay the income generated from such property to any other family.
- Clarification regarding direction if such a circumstance arises where the executor dies before the testator.
- Clause to ascertain who would hold the property in case bequeathed on minors until they are major.
- Clarification regarding payment of probate.
- Payment of any liabilities incurred in the past or during the ceremonies to be conducted upon the death of the testator.
- Specification of division of properties between the daughters and implication on the will if they married.
- Specification regarding circumstances if the daughters remain unmarried.
V. Registration procedure | Registering a Will
Though it is not compulsory to register a will, the testator may choose to register it with the Registrar or Sub-Registrar of the District Court under whose jurisdiction the property lies. It is always advisable to register a will as registering gives it a legal backing in case of any disputes which may arise in the future, such as disputes regarding the validity of the will.
The testator can also choose to keep the will in safe custody. The will can be withdrawn at any time. Will registration is not mandatory under Indian Law, however, a registered will implies that the registrar has verified the writer of the will and the witnesses by attesting it.
Often, a will is challenged in court on the grounds that it was made under coercion, threat or by a person of unsound mind. One way of establishing that the will was made by the testator of his own free will with full mental capacities is to Register the will.
Unfortunately, a vast majority of people do not know who has written their parents will or where the will has been stored. If the family does not know where the will has been stored, it may be assumed that the person has died intestate and, in such a situation, their estate will be administered as per the succession law applicable.
This may not be as per the deceased’s wishes as mentioned in their Will. Therefore, by registering their will, a person will be able to ensure that the executor or next of kin will be able to get their will from the Registrar in the case that the original will cannot be located.
Registration is voluntary and helps establish the existence of a will. It is comparable to a will safely kept.
VI. Process of getting a Will registered
A date is fixed in the Sub-Registrar office for the will registration. The Government Registration Fee is paid. This fee varies from state to state but often, it is very less. The testator, along with two witnesses, goes to the Sub-Registrar office to register the Will. A registered copy of the will can be collected after one week.
Under Section 18 of the Registration Act, 1908, the registration of a will is not compulsory. Also, the Supreme Court in Narain Singh v. Kamla Devi has held that on the basis of mere non-registration of the will, an inference cannot be drawn against the genuineness of the will.
However, it is advisable to register it as it provides strong legal evidence about the validity of the will. Once a will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate.
Since a testamentary disposition always speaks from the grave of the testator, the required standard of proof is very high. The initial burden of proof is always on the person who propounds the will.
Registration of Will by an NRI (Non-Resident Indian)
It is also recommended that NRIs must also register their will separately in every jurisdiction, even though it is optional in India to do so. It may be mentioned that the registration in a particular country may hold good in respect of properties of the NRIs in that jurisdiction. Accordingly, separate rules of registration of different countries ought to be complied with as per rules of the foreign domicile of the NRI.
 AIR 1954 SC 280.