All you need to know about making a Will

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All you need to know about making a Will

17 February 2017
All you need to know about writing and planning your will
 
 

By Sanjeev Sinha 

There is an old saying: Where there’s a Will, there’s a way. In the absence of a properly-executed Will, however, the ways ahead may sometimes be not only too many, but also too complicated. Ask the Birla clan, the Ranbaxy family, the Ambani brothers or even your neighbourhood uncle. They will all agree that the road to inheritance globally is usually paved with ill Will stories. Still, in India at least, ‘Will planning’ is hardly seen as a part of financial management. But before knowing the importance of a Will or its planning, let us first understand what it actually is. 

What is a Will 
It is a legal document that names individual/individuals who would receive the property and possessions of a person after his/her death. The document can be revoked, modified or substituted by the person executing it at any point during his/her lifetime. 

Importance of Will planning 

Will planning is important because the document always acts as an inventory of the assets left behind by the deceased. A clear and well-written Will also helps in avoiding any bickering among the natural heirs. And, if a person wants to distribute his/her wealth to anyone other than the natural heirs, the Will assumes paramount importance. 

Related: Estate planning: 10 things to do before you die

Who can make a Will 

Any person with a sound mind and who is not a minor can bequeath his/her property with the help of a Will. People who are blind or deaf or dumb can make a Will, if they understand the results of their actions as well as the legal consequences. A person who is ordinarily insane may also make a Will, but only when he/she has a sound mind. However, if a person does not know what he is doing, he can’t possibly make a Will in such a state of mind. 

Registration of a Will 

A Will can be executed on a plain paper and remains fully valued even if unregistered, i.e., it is not compulsory to register it under law. However, that does not stop a person from registering the same simply to put an end to any doubts raised over its authenticity. 

If one wants one’s Will to be registered, one has to visit the sub-registrar’s office along with witnesses. There are sub-registrars for various districts and one has to find out from the concerned office about the one who will help in registering it. 

Legal evidence 

Once registered, the Will becomes a strong legal evidence. It has to be in writing, stating that the person executing the same is making it by his/her own free will and is in a sound state of mind. The Will has to be signed by its executor and has to be attested by at least two witnesses. Also, no stamp duty is payable on a Will, hence it need not be written on stamp papers. 

Related: What to do after the dealth of your next of kin (Part 1)

Types of Wills 

There are two kinds of Wills: privileged and unprivileged. A privileged Will is an informal Will made by soldiers and airmen employed in expeditions or actual warfare, as well as by sea mariners. All other Wills are called unprivileged Wills. The former can be made either in writing or also by an oral declaration and at a short notice by individuals who are about to put their life at risk, while the latter requires formalities to be followed. 

Signature of the testator 

The signature or mark of the testator — the person who’s making the Will — is necessary for an unprivileged Will. In certain cases, the Will may be signed by some other person in the presence of the testator, who may, for instance, be physically unfit to do so. Some states also permit individuals other than the testator to sign the Will, but this can only be done with the testator's direction or consent. It is, however, always advisable to have a Will signed by the testator to avoid any dispute later. Every unprivileged Will should be attested by at least two witnesses who have seen the testator or his agent sign it. Each witness must sign the Will in the presence of the testator. But it is not necessary for a witness to sign in the presence of the other witness/witnesses. 

Safe custody of Will 

There is a provision for the safe custody of a Will as detailed in the Indian Registration Act, 1908. The sealed cover containing the Will and superscribed with the name of the testator or his agent may be deposited with any registrar for safe custody. 

Legal standing of witnesses 

For a Will to be valid, a legatee, or the beneficiary under a Will, should not be a witness. 

Related: What to do after the dealth of your next of kin (Part 2)

Revocation of a Will 
The revocation of a Will may be voluntary or involuntary. An involuntary revocation is by operation of law. Any Will made by a testator stands revoked if he/she gets married. Revocation results from not only the first marriage of the testator, but also any subsequent one. One can make a Will as many times as one likes, but only the last Will, executed before the testator’s death, is enforceable. 

 
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