What is a Will?
Before understanding how to prepare a will or how to make a will in India let us understand what is will? Will is a declaration by the person making it who is also known as testator of the will. Will declares that how a person is wishing to dispose off his/her property after their demise. The point which is to be noted that the will can be made only in respect of self acquired property and not in respect of the ancestral property. Testator is the person who prepares the will and the executor is the person in whose favor the will has been made and who executes the will on the death of the testator.
Will should be made in a clear language i.e., when the will is interpreted by the executor of will or by anybody else it should be interpreted clearly without any ambiguity. It is always advisable to write a will in one own’s handwriting so as to avoid any unauthorised addition or subtraction in the will.
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How to Make a Will in India?
The question which is asked most in drafting of will is how to make a will in India, how to make a will in India without lawyer, and how to register a will in India. Well let's try to find out answers to the above stated questions.
Will is an important step and a person should prepare a will though it is not necessary to register a will or even to make a will in India but it is advisable to prepare a will in India and to register the same will under the Registration Act, 1908. To make a will in India and for registration of will in India it has to be made under the Indian inheritance laws.
Will Registration is not mandatory in India and the registration of will has been made optional under the Section 18 of the Registration Act,1908. Though will registration is optional and even the making of will and preparing of will is also not mandatory but for easy distribution of property and wealth after one’s death and to avoid property disputes it is advised to prepare a will, and be done with the will registration process. To make a will and for will registration one can consult the top civil lawyers in India to assist them and answer there query of how to prepare a will in India.
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How to Prepare a Will in India?
There are several parts to a will and on completion of all the parts it will make a complete will. There is no strict template which is to used in drafting of will. Though to prepare a will in India one has to include the following essentials in the will -
Declaration in the Beginning - The will has to begin with a declaration in the start. The declaration has to state that the will is being made in the full sense of a person and that he is preparing the will with his own free consent. The declaration should contain the name, address and age of the person at the time of making the will.
Details of Property and Documents - While making the will, one must include the details of the property and documents along with their value at the time of preparing the will such as house, land, bank fixed deposit, postal investment, mutual funds, share certificates. The will should also mention the place where the documents related to such items has been stored by the testator of the will.
Details of Ownership - To prepare a will it is imperative that it must contain the details of ownership. In the will it should be clearly stated that the assets mentioned in the will are owned by the testator at the time of making the will. The details of ownership also means that while making the will it should also mention that in what proportion and to whom the assets will be distributed after the death of the testator. If the testator gives certain property to the minor then he should appoint a person as a beneficiary to the minor who will handover the property the property to the said event on reaching the age of majority.
Signing the Will - All the above mentioned steps are important in understanding how to prepare a will in India and for will registration process but the most important step in preparing a will in India. Once the preparing of will is completed it has to signed by the testator in the end. The will has to signed by the testator in presence of the two witnesses who also has to sign the will. At the end of the will the date and place of making the will should be clearly indicated. Signature by you and the witness has to be done at the end of the every page of the will. The witness to the will should not be the persons who are going to derive the benefit from the execution of the will.
You can consult a civil lawyer for making the will on your behalf.
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How to Make a Will Without a Lawyer in India?
Generally people choose to opt to prepare a will without a lawyer in India. Often you must have also heard everyone saying Prepare a will without a lawyer in India it is so simple that you can actually ‘do it yourself’. Though you can make a will without a lawyer in India and also can get the registration of will done by yourself without a lawyer but it is advisable that a will should be made with the help of lawyer only. As making a will without a lawyer in India can leave certain ambiguities in the will which makes it difficult to interpret the will. Also, the person preparing will is not aware of the essentials and components required by law in the will.
What is Probate and Importance of Probate?
Copy of will which has been certified by the court under its seal is known as Probate. The executor (someone who is responsible to execute the will) has to file a probate petition in the court of law and if all goes well, the probate takes six months to a year. No right as executor or legatee can be established unless a court has granted the probate of the Will.
The grant of probate can only be made in favor of the executor who has been appointed by the testator while making the will. The cost included in the cost for probate includes the legal cost as well as the cost of stamp duty on the property which is the subject matter of the will. The stamp duty on the property differs from state to state.
Is it Necessary to Register a Will?
The answer to the question is it necessary to register a will is simple. In India, it is not necessary to register a will nor do the Registration Act, 1908 makes the registration of will mandatory. So the question arises is when it is not necessary to register a will then why should one go for registration of will in India. The answer to this is that registration of will provides a legal back to the will in case any dispute to the will arises in future. In case there is any question related to the validity of the will the registration of will, will be very helpful in such a situation.
Registration of will also helps in the case where more then one will has been made by the testator of the will. For instance, if the testator has made two wills on the same date and only one of them is registered then in case of dispute related to validity of both the wills, the one which is registered will be considered valid and shall be executed for the division of property. Thus, will registration should be done as a registered will has more benefits and advantages than the unregistered will.
But simply registering a will is not enough. In the case of “Rani Purnima Devi And Another vs Kumar Khagendra Narayan Dev And Another”, the Supreme Court said, “Registered Will not by itself be sufficient to dispel all suspicion regarding it, where suspicion exists, without submitting the evidence of registration to a close examination”.
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Stepwise Procedure of Will Registration
The step by step process of registration of will has been explained below :
There is a lot more flexibility in the registration of will as compared to registration of any other document as there is no timeline provided for registration of will under the Registration Act. A will can be registered anytime during the lifetime of the testator.
The wills are to be registered in the office of the sub-registrar or the office of the registrar of the district court under whose jurisdiction the majority of testator property lies.
In all normal or ordinary cases, the registration process has to be in the offices of the Registrar or the Sub-Registrar. But, in special cases, Section 31 of the Registration Act provides an exception.
The section states that the “officer may on special cause being shown attend at the residence” for the registration process of the will.
The cause may be ill health, impending the death and other such situations.
It is the duty of the Registrar to examine the documents carefully and make sure no legal errors are made in the same before signing on the registration.
Wills are not mandatorily registered under the Registration Act, 1908 and thus both the registered wills and unregistered wills have same effect and even an unregistered will is valid in the court just like a registered will. It is a misconception that if an unregistered will is made on the later date than the registered will, the registered will have a supremacy over the unregistered will. The will which is made last during the lifetime of the testator by the testator will supersede all the previous wills without having any concern with the registration of will.
Further Read : Gift Deed Registration: Everything you need to know