Wealth is of two kinds:
Ancestral – Properties handed down through generations and Self acquired – Properties acquired through self-earned money.
In the event of ancestral properties the Will has very limited role to play. However in self acquired properties, the Will is the sole ground to distribute the property as per the written wish of the person who has acquired the property i.e. Testator.
We need a Will to ensure the acquired assets go to the person as per the wishes of the Testator.
Conditions under which you SHOULD make a Will:
- Age over 45 years: The chances of getting ill increases after age 45, so it is always advisable to draft the Will as per the wishes of testator as soon as possible.
- Suffering a critical Ailment: Since life span of persons suffering from critical ailments is uncertain, therefore it advisable to draft the Will as per the wishes of testator as soon as possible.
- Property under dispute: In the event of disputed property where it is under litigation and in India, it takes years to decide simplest of matter, it better not to wait for judgment or outcome of litigation but to draft WILL so that even after litigation this may get disposed as per the wishes of testator.
- Matrimonial issues: In the event of matrimonial issues, the first class legal heirs Will get property as per Hindu succession act like wife, husband and children. Therefore in the event of any death, the property Will go to the first class legal heir in absence of any Will irrespective of dispute.
Essential elements of the Will:
Describe all properties: Mentioning the detail of each property is very important. This makes the Will complete and absolute and does not leave any place of ambiguity. Both movable and immovable property can be covered in the Will.
Describe all family members: For the sake of completeness and unambiguity, the document should mention every family member specially the first class legal heirs in the Will.
If excluding any first class legal heir, mention the reason: Also, if including a beneficiary, mention the reason. Beneficiaries can even be non-family members. Again, to make this document watertight, mention the reason if any non-family members are made beneficiary in the Will. The Will shall make sure that the property goes to the persons who are made beneficiaries and exclude others. Even legal heir can be excluded in the event of self-acquired property, like son not taking care of Parents and parents making Will in favour of daughter or others.
Registration is optional, but if possible get it registered: Getting Will registration is optional but it’s always advisable to get it registered. It gives authenticity to the document and it would not be easy to challenge a registered Will.
Get two young, loyal and credible witnesses: If the Will is contested in probate petition, the witnesses will be required to prove the signature of the testator and also the contents. It’s a statutory requirement to have at least two witnesses to a Will. If this requirement is not met, the above exercise can be a waste.
The Will shall be written in a language that testator (maker) understands
How to avoid misuse of the Will
If the Will is registered and made public when the testator is still alive and witnesses are credible, it is unlikely that a well-reasoned WILL can be misused. However the Will can be changed at any time during the life term of Testator, if he sees any possibility of misuse by anyone.
It is always advisable to hire a credible lawyer to cover all the above aspects.