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A Will is a legal declaration of a person on a document regarding the distribution of his assets after his death. It is a unilateral document that takes effect upon the death of a person allowing you to make an informed decision on how your wealth, property and assets will be distributed on your death.
Will is a legal document but there is no prescribed form of it as it can be handwritten or typed on any document and not just the stamp paper. A Will may be revoked or altered by the owner at any time prior to his/ her death.
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According to the India Succession Act, there are two types of wills, Privileged and Unprivileged will.
Privileged Wills are those Wills which are made by soldiers who are employed in an expedition or a war-like situation or an airman or mariner. These types of Wills do not have many legal formalities and they can be made in writing or orally.
In this article, we shall mostly be discussing unprivileged wills.
A Will has the following essential characteristics:
The intention of the testator must be to take effect after his death
As per Section 59 of the Indian Succession Act, 1925, the person making the Will must be of: -
Furthermore, the section states that a person ordinarily of unsound mind may make a Will during the interval of the soundness of his/her mind. The section prohibits a person from making a Will when in a state of intoxication or illness which makes him/her incapable of understanding the consequences of the act.
STEP 1: Firstly, all the essentials of a will as mentioned need to be adhered to.
STEP 2: It is advisable to consult the family lawyer before drafting the will. A will can either be drawn by the testator himself or through his lawyer.
STEP 3: A will is executed by ensuring the signature of the testator in the presence of the two witnesses and their signatures as well.
STEP 4: It would be beneficial if a will is registered and properly stamped as it helps in ensuring proper execution.
For starting the process of execution of the will, a Probate in India needs to be obtained from the court. A Probate of will is a legal certification of the genuineness of the will. It can be obtained by filing a petition before the court along with a schedule of the property and annexing a copy of the will to the petition as well. It should be expressly prayed to the court to grant probate to carry out the intention of the testator.
“A will needs to be drafted by taking into consideration the implications that shall follow the beneficiaries and it is better to keep the beneficiaries informed of the same,” says Advocate Koonal Tanwar.
“A proper method of preserving the will can be done by ensuring that it is registered as it would give it a two-fold benefit, one of having a documentary presence and two of ensuring the legal validity over an unregistered Will,” adds Advocate Koonal.
In a will the following details are to be included:
Details of the testator- The name, age, address and other details which shall help in identifying who is making the will and when is it being drawn.
In the Indian Legal scenario, the laws governing the transfer of property through a will can be seen through these legislations,
The Indian Succession Act, 1925
A will can be challenged on the following grounds:
Presence of coercion, fraud or undue influence- There needs to be a presence of these elements to establish that the Will was not drawn with a clear intention and the testator was under pressure.
Presence of a suspicious nature- There may be a presence of certain elements in the Will which could give a reasonable understanding that there was some transgression with it.
In a court of law, under the above-mentioned grounds, a will can be challenged by:
STEP 1: Filing a suit in a valid civil court.
STEP 2: Issuing Vakalatnama, which gives the lawyer the authority to act on your behalf and pay the required court fee
STEP 3: Initiation of the proceedings and filing of a written statement by the other party
STEP 4: Documents like Legal Heir Certificates and other documents essential to the case to be filed before the court
Yes, there can be a challenge to a will after probate on the following grounds:
If there was a fraudulent grant of probate by concealing facts or deceiving the court
Yes, there can be a waiver of the right to challenge a Will, but it needs to be done by entering into a contract with all members who have vested interests. This, however, requires that there should be an intention of relinquishment of their right, conscious abandonment of it, clear and unambiguous intent to not exercise this right and complete knowledge of the waiver of such right.
What is the process of intestate succession in the absence of a Will?
Intestate succession in India is done when a person passes away in the absence of a will. In India inheritance is dealt with in 2 scenarios.
Under the Personal Laws, we have the Hindu Succession Act, 1956 and the Muslim Personal Laws (Shariat) Application Act.
The process of revocation means the cancellation of a will. This can be done in the following ways:
Why should I make a Will?
To prevent disputes amongst the legal heirs and distribute your assets as per your wishes/ choices, you should always get a Will drafted. A well-drafted Will can provide for the distribution of assets in a specified proportion among your spouse, children, parents, friends, and associates.
Who is the executor of Will?
The executor of a Will is the person who will overview the entire process appoint to ensure that the directions in the Will are carried out as per your wishes. An executor can be any person who is not a beneficiary in the Will, or any trusted person such as a family friend, a lawyer or a chartered accountant.
What happens if I don’t appoint an Executor?
The court will appoint an administrator to carry out the responsibilities of the executor.
Who will get my assets if I die without making a Will?
Your assets will be divided and distributed according to the succession laws, which are based on the deceased person’s religion. Click here to read about Intestate Succession.
What makes a Will legal?
Ensuring the following makes a Will legal:
When should I make a Will?
You can make a Will anytime after you attain the age of 18 (Eighteen) years. However, you should make a Will once you have married and have children, as these factors substantially drive the contents of the Will.
What are the common mistakes that should be avoided while drafting a Will?
Following mistakes should be avoided while drafting a Will:
Is it important to register a Will?
No. It is upon the testator if he wants to or not. However, if a Will is registered, it will be a document of proof that will be safe in the hands of the registrar as it cannot be tampered with thereafter.
Can I change my Will after registration?
As a testator (owner of the Will), you can change the Will at any time you deem fit. Once you have changed the Will or made a new Will, all preceding Wills are canceled automatically.
What are the advantages of getting a Will registered?
Registration of a Will carries the following benefits:
What assets can be covered/bequeathed under the Will?
All the movable and immovable assets including but not limited to real estate property, fixed deposits, money in bank account(s), securities, bonds, proceedings of insurance policies, retirement benefits, art collection, precious metals (Gold, Silver, etc.), brand names/ trademarks and Intellectual Property Rights.
Who can be a witness to the Will?
Anyone who is above 18 years of age and of sound mind can be a witness of the Will. It is generally recommended to not have beneficiary as a witness.
If the Will is signed by a single witness, will it be valid?
No. There need to be two signed witnesses to a Will, after which it will be considered valid even if it is not registered.
What happens to the validity of the Will if one among the two witnesses die?
The Will will still remain valid but the heir to the Will may face problems trying to prove that the Will was without a doubt signed by the two witnesses before the unfortunate death of anyone of them. This is where the importance of getting a Will registered by a registrar, and overlooked by a professional lawyer, is deemed to be a wise choice.
How much is the cost of making a Will making n India?
Legal professionals may charge around Rs.4,000 - Rs.6,000 while experienced counsels may charge anywhere between Rs.10,000 - Rs.15,000.
How can one avoid Probate?
Some of the known ways to avoid Probate is either getting rid of your property or using joint ownership with rights or beneficiary designations.
Can you update/ change your Will?
Yes, you can update/ change your Will. It can be done by discarding the old Will and drafting a new Will. If the Will is filed before the Registrar then the agent appointed by the testator can apply for amending the registered will.
Is handwritten Will legal in India?
Yes, the handwritten Wills are legal in India. However, they need to be legible and should also follow the criterions or the essentials of a valid will.
What is a valid Will in India?
If any Will has the essentials mentioned in it along with the proper intention of the testator, it is valid. These essentials are the presence of an intention, details of the testator, details of the assets, details of beneficiary, details of the executor, signature of the testator and proper verification in presence of two witnesses.