Seldom do people realize the importance of making a Will until it is too late. We should take note of a recent example, that of a well-known industrialist who died intestate, leading to a long and costly dispute between his sons over his huge assets.
Rather than putting off making a Will, do the right and responsible thing towards yourself and your heirs and do it sooner rather than later.
As you will find out, making a Will is fairly simple!
1. What is a will?
In simple words, a “Will” is a legal document that a person prepares during his / her lifetime setting out how their estate will be distributed after his/her death among the family members and others. “Will” represents the last wish of the deceasedperson regarding his estate. Although, not mandatory a lawyer’s assistance can be taken in preparing your will.
2. When to make a will?
During one’s lifetime, a will can be made. Nowadays, most people prefer to have a Will made in their early 50s and 60s, so as to ensure that their estate will be distributed safely and securely as per their wishes and without any sort of confusion or meddling on the part of greedy relatives or outsiders.
3. Why do you need to make a will and what are the benefits?
• You can distribute your property exactly as you please - how much ever you want, to whomsoever you want, including outsiders, such as close friends and distant relatives, contributions to NGOs, charities, etc., without being bound by your Personal Law. You can even exclude certain family members if you so desire, such as an estranged child, spouse or sibling.
• A Will comes into effect only after your death and therefore, you can enjoy your property freely during your lifetime
• It ensures that after death, your property does not fall into the wrong hands and legal heirs do not need to spend money to acquire mandatory documents like succession certificates (for the movable property) or letter of administration (immovable property), in order to transfer titles, cash, investments, assets or properties.
• Secures the financial future of your family members after your death
• Helps to avoid family disputes within your family
• One-time effort
• No complicated legal requirements or formalities
• Once drafted, a Will can even be amended or changed as many times as you like, in case you have a change of heart
• A Will can even be revoked and a fresh Will can be drafted as many times as you like
No stamp duty is required to be paid, as in the case of various other legal documents related to property
• There is no specific format and can be tailored to your specifications
• Registration is optional
In short, executing a Will has no disadvantages and is, in fact, recommended as the safest mode of succession of one’s estate.
4. How to make a will
• Make a detailed list of all the assets you own, including flats (mention each address), commercial premises (mention each address), bank accounts, jewellery, shares and other securities/ investments, fixed deposits, etc.
• Decide the beneficiaries (persons to whom you would like to give something from your estate). The financial conditions and needs of your parents, spouse and children, if any, ought to be considered first.
• It is essential to enter your full personal details (name, address, place and date). Put in the full name and relationship of beneficiaries.
• Decide as to the distribution of your assets - which property shall be given to which beneficiary and to what extent. Legally, there are hardly any restrictions in this regard and you can do as you please.
• Appoint an “Executor” - the person in charge of executing your Will after your death. An executor ought to be someone younger than you, who can look after your estate and distribute it honestly and efficiently as per your wishes. He should be someone trustworthy, such as a close friend.
• Two or more witnesses will be required as “attesting Witnesses” - you will have to sign (execute) the Will in their presence and they will also have to sign the Will. This is a legal requirement so that in case of any dispute later on after your death, the witnesses can testify and prove the Will in a Court of Law (which would be the Bombay High Court for Wills executed in Maharashtra). Usually, close friends who are younger than you are a good option.
• Any person of age 18 years and above can execute a Will - While there is no age limit, it is of utmost importance to prepare and execute one’s Will around the time one reaches 50-60 years of age. The rationale behind this is:
o By the time you attain this age, you are financially settled, married, the children are also settled in their life and plus you would have saved, inherited and otherwise acquired a substantial amount of assets and therefore, would be in a position to decide as to who would succeed to these after your death.
o Another aspect is that as you retire and become a senior citizen, your dependency on your children and family increases substantially. You may feel a certain amount of pressure to make a Will as per the wishes of your caregivers as you depend on them for your day-to-day requirements. Therefore, it would be prudent to make a Will well in advance, whilst you enjoy good health, so that you can freely exercise your own judgement and free will, without interference or pressure from family members or fear of death or serious illness.
o Another very important aspect is to be of sound physical and mental health - you must prepare and execute a Will only when you are physically and mentally, fit and in a sound state. You must not be under any kind of pressure or threat. This is an important legal requirement to ensure that there is no fraud, compulsion or demand by anyone else. A Will is considered to be a very solemn document by the Court, as the author of the Will is not alive to prove it and therefore, the Court will satisfy itself to ensure that the Will was made by the deceased as per his/her own free will when he/she was mentally in a peaceful and sound state of mind.
• Confidentiality: Depending on your relations with your family, you may keep the preparation of your Will secret or may discuss it openly with members of your family.
• Safekeeping of the original Will: it must be kept safely without any damage, away from fire, water, dust, etc. Keeping it in the custody of the lawyer or executor or in your bank locker is common practice. Also ensure that there are sufficient
photocopies made and kept safely, preferably separately from the original Will.
Common legal terms you may come across in a Will:
• Testator / Testatrix: One who makes the Will
• Estate: the various assets of the testator/ testatrix
• Executor: one who is in charge of effecting the Will which includes, at first, proving it in the Court, and thereafter, distributing the assets as per the wishes of the testator/ testatrix as set out in the Will.
• Attesting Witnesses: two or more persons who affix their respective signatures onthe Will right after the testator/ testatrix has signed the said Will. They sign the Will to say that they have seen the testator/ testatrix sign the Will in their presence (so as to dispel any doubts of a forged signature)
• Beneficiary: Any person who receives all or a part of the estate of the testator/testatrix as per the Will
• Bequest: giving any part of the estate to a beneficiary under the Will
• Probate: An Order of the Court certifying the Will is valid and capable of beingeffectuated. Without obtaining probate, a Will cannot be acted upon by anyone. If uncontested, probate is usually granted within a year’s time from filing a probate petition in the Court. In case of any contest /objections raised (usually by unhappy family members), the said probate petition will be tried as a regular legal suit in the Court. Every person’s case is unique as to their estate, family relations, etc., and therefore, it is highly recommended to appoint a lawyer and obtain legal advice and assistance tailored to one’s specific facts and circumstances. Since a Will is a document by which one disposes of one’s entire estate, it is crucial that a lawyer guide and assist in making and executing it. If it is not properly drafted or executed as per the Indian Succession Act, 1925, the Court shall refuse to recognize the Will and it shall be void, i.e., invalid. In such cases, the testator/ testatrix shall be deemed to die intestate (without a Will), and the property of the deceased will be governed by Personal Law. Very often, this will lead to property disputes and long, drawn-out legal battles amongst family members.
This quotation best sums up the reason for making a will:
“You live forever through your will
It eases the burden among your heirs
Your will is a plan that defeats death
Your wishes are fulfilled after you are no more.”
-By Anita Natu with Inputs by Devanshi K Sanghvi, Advocate, Bombay High Court
- NB: _All readers are requested to note that whatever has been stated in this Article __does not, in any manner, constitute any form of legal advice and/or opinion, and the __writer shall in no way be held liable/responsible for the same. Since all legal matters __are always case specific, professional legal help, advice and opinion pertaining to _one’s unique facts and circumstances ought to be sought from a qualified advocate.
To attend event on “How to male a Will – Basics and Importance”, click on link below:
https://mkt.vayah-vikas.org/event/
To ask questions on the Forum click on link below
https://vayah-vikas.org/groups/all-groups/details/NzI
For a Sample Will Form, click on link below
https://vayah-vikas.org/article-info/SAMPLE-WILL-FORM/Mjg1(public:login)
To know more about The Indian Succession Act 1925, click on link below:
https://www.indiacode.nic.in/bitstream/123456789/2385/1/a1925-39.pdf