INTRODUCTION

A Will is a solemn document by which a dead man entrusts to the living to the carrying out of his wishes. Section 2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death Will has been defined in Corpus Juris Secundum as A ‘Will’ is the legal declaration of a man’s intention, which he wills to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death.

A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. However Mohammedans are not governed by the Indian Succession Act, 1925 and they can dispose their property according to Muslim Law.
A will primarily lets you direct how your belongings—such as bank balances, property, or prized possessions—should be distributed. If you have a business or investments, your will can specify who will receive those assets and when.

A will also lets you direct assets to a charity (or charities) of your choice. Similarly, if you wish to leave assets to an institution or an organization, a will can assure that your wishes are carried out.

While wills generally address the bulk of your assets, some aren’t covered by their instructions. Those omissions include payouts from the testator’s life-insurance policy. Since the policy has specified beneficiaries, those individuals will receive the proceeds. The same will likely apply for any investment accounts that are designated as “transfer on death.”

OVERVIEW

There is no such thing as a perfect will, but you can try to ease the transition of assets by sticking to legal requirements. Anyone above the age of 18 can make a will on a plain piece of paper and does not have to adhere to any format or structure. Yet, it is critical to be clear about the content. If you miss a single point or are ambiguous, the will can be challenged. The will comes into effect only after the death of an individual and no beneficiary can claim any asset before this while he is alive.

Technically sound

 The will should have the full names and identification of the testator and witnesses.

  •  It should be signed by or carry a thumb impression of the testator and two witnesses, who are not beneficiaries, on all the pages of the will.
  • It should carry the date on which it was made and signed. If not dated, it will be void. The law also says that a new will with a later date would make the previous one null and void.
  • One can make the will as many times one wants, but should carry a declaration that all earlier wills preceding the last will are revoked, along with the dates of previous wills. The will can be altered through a codicil*, a document signed lo the testator in the presence of witness make changes to the existing will.
  • The testator needs to be physically mentally capable of drawing up a will should be aware of what he is including in the document. If someone else is drawing up the will for him in a language he do not understand, he should be made aware of the entire content of the will. The person who explains it should testify to the same in the will.
  • The testator should make the will his own free will and not be pressure forced into doing so by anyone.
  • It is important to keep both the original document and photocopies of the will. The original document should not be lost can go against the beneficiary. “An objector can contest the will claiming that the testator revoked the will since a torn or destroyed will is considered revoked as per law. If you get it registered, a copy will automatically stay with the registrar.
  •  The testator must appoint an executor, along with alternatives if the appointee were to predecease the testator. All identifying details of executors should also be mentioned.

*Codicil:- If a testator intends to make minor changes to the will, without changing all the contents, he can do so by making a codicil to the will. A codicil is a part of the will, which must also be signed by the Testator and attested by two witnesses. The testator can alter and revoke the codicil at any time.

Clear & Unambiguous

  • All the details of the testator, witnesses and beneficiaries should be clearly mentioned. These includes full names, dates of birth, addresses, and PAN /Aadhaar card numbers.
  • All the assets, movable and immovable, belonging to the testator should be neatly listed. The will should also carry complete details of each asset, including where these are invested, the amount involved and how these can be accessed (company address, login and password, online account numbers, dates of purchase and sale of assets, ownership details, among others).
  • All the details of beneficiaries should be mentioned along with the relationship to the testator. Do not use pet names or first names. If a legal heir is not a beneficiary, list their names and the reasons for leaving them out. If a third party has been made a beneficiary, do the same.
  •  Do not have overlaps or make vague a conflicting statements about the distribution of assets. List out the percentage of share allocated to each beneficiary if the asset is being split. State clearly which asset goes to which beneficiary, in what proportion.
  • The testator should include all his debts and liabilities, along with all the details of the lending institutions, dates of repayment and how these are to be repaid.
  •  If there is a change in the status of beneficiaries or assets over a long period of time, these should be updated by the testator.
  • The testator can appoint guardians for minors, if any, along with their details and instructions on how the minors are to be treated till they become adults. Any financial arrangement for kids should also be mentioned.

SAMPLE WILL

I, ………………………., born on ……………………….., son of ……………………., resident of ……………………………………………, with PAN No. …………………………… and Adhaar ……………………….., declare this to be my last will being made on ………………………..

I revoke all prior wills and codicils made on ………………………….

I am in good health and of sound mind and am not making this will under any persuasion or coercion.
All my movable and immovable assets, owned by me and belonging to nobody else, should be distributed in the following manner:

Movable assets

-Bank accounts (savings/ fixed deposit, Bank name, address, account no., amount)

-Stocks/ mutual funds(Company or mutual fund house name and address, demat account, MF unit/ share value, dates of purchase, etc).

-Jewellery (List all items with prices/ values)

-Other schemes (Name of scheme, name and address of bank/post office, amount invested. maturity dates).

Immovable assets

-Any House with its Value and address

-Any Land with Value and address

Special Instructions:

Among other things, you can mention here in detail about…

a) Appointing guardian for minors after you pass away.

b) Setting up trust for minors or kids with special needs after you pass away.

c) Appointing medical attendant/ caretaker for yourself and financial arrangements or amount kept aside in case you suffer from debilitating disease or disabilities.

d) Arrangements and amount kept aside for your funeral.

e) Instructions for executor on how the assets /minors or other relatives are to be treated.

I appoint ………………, son of ……………….., resident of ……………………………….. as the executor of this will. If ……………………… predeceases me, then …………………, son of ……………………….., resident of ……………………………………………….., will be the executor of this will.

I hereby sign this will on …………………………… in ……………………, in the presence of the following persons who have witnessed this will in my presence.

(………………………………..)
Testator’s sign/ thumb Impression

Witness

Sign.
Name:
Address:

PAN/Adhaar:

DO’S & DON’TS TO BE KEEP IN MIND

Do’s:

1. Testator’s full name, with age, current address, identification (PAN/Aadhaar), and parents’ names should be mentioned.

2. If the Will replaces previous Wills/Codicils, the dates of all earlier Wills that are being superseded need to be mentioned.

3. There should be a legal declaration stating the testator is healthy, and is not writing the will under coercion or pressure.

4. The will should preferably be written by the testator instead of it being typed or printed. It is easier for a handwriting expert to prove the authenticity of the will. Also, it should be in a language that is understood by the testator. If he is illiterate or does not understand the language in which the will has been made, the will should be explained to the testator by a person, whose personal details should be mentioned in the will.

5. It is advisable to append a medical certificate by a doctor Vouching for testator’s physical and mental health. It is not mandatory, but makes the will more authentic.

6. There should be a date mentioning when it was signed by the testator.

7. Witness should ideally be a person with some social standing, say a doctor or chartered accountant of repute, not someone who can be easily influenced financially.

8. Will should have testator’s sign or thumb impression (left hand thumb for women, right hand thumb for men).

Don’ts:

1. Do not give incomplete information about assets or beneficiaries List full names,personal details and identifiers for each.

2. If a legal heir has not been listed as beneficiary, mention this in the will.

3. Do not make vague or conflicting statements about passing on assets to beneficiaries.

4. Don’t leave out any loans, debts, and list of all the details and amount, that you have at the time of writing the will.

5. Don’t sign only at the end of the Will. The Testator and Witnesses should sign all the pages of the Will.

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2 Comments

  1. Rajendra krishnarao Kudekar says:

    In a will, father having property, can he say “that after my death,the property shall go to my wife and after her death the property shall go to my son”. Is it legally acceptable or not. Please inform. Rkkudekar

    1. ADVBHUSHANBAJAJ says:

      Hii Rajendra ji,

      Thanx for the question.

      He can make this kind of WILL and it is legally acceptable, in this case, it appears that the mother, the widow (after his death) of the deceased testator, has been given a life interest in the property by the late father, which is limited to her enjoyment during her life time. A person with life interest generally does not have the right to sell, transfer or alienate the property to the detriment of the absolute owner, which in your case is the SON. It is a limited right to enjoy the property up to the death of the life holder.

      You may refer to the Supreme Court judgment dated 12 December 2017 in the matter of Ranvir Dewan versus Rashmi Khanna & Ors. [(2018) 12 SCC 1].

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