How to make a will and see it through

“Where there is a will, there is a relative. Where there isn’t a will, there is chaos”
Anonymous

This statement aptly describes the situation when a person dies without leaving a will. As we have seen in the past — including for industrialists — not making a will can lead to family feuds and mud slinging over inheritance. To avoid such a situation, it is important to make a will for a peaceful division of your property. After all, death is certain, but the time is not!

Staring out
It is advisable to prepare your will as soon as you acquire any property — whether movable or immovable — and alter the same as and when the circumstances change. You should not even wait to get married to write a will.

You can make more than one will to deal with separate properties; but it is advisable to have one will.

People are generally under the impression that a will is required
to be made on a stamp paper. But that is not the case.

The legal position is that a will is neither required to be executed on judicial stamp paper nor is any stamp duty is required to be paid. A will can be made on a simple piece of paper.

The will is required to be attested by at least two persons, one of whom preferably should be your family doctor. This will help in case any dispute arises with regard to your mental condition at the time of making the will.

The purpose of attestation is to obtain a confirmation from the witnesses that the testator (maker of the will) has in fact signed the will. The witnesses are not required to know the contents of the will and the testator need not disclose the contents of the will to the witnesses. It is not necessary that all witnesses sign at the same time.

The signatures of the witnesses can be obtained at different point of time. A person who is named as executor in the will can also be a witness to the will. The instructions or directions contained in the will come into effect only after the death of the person who has executed the will.

You can change your will as many times as you want by making a fresh one.

Keep it simple
Write the will in very simple words without using legal jargon. What is required is that your intention be clear from a reading of the will.

The will can be handwritten or printed, but you need to sign or mark the will to confirm it has been made as per your instructions and wishes.

The will can be made in any language, but it is preferable to make the same in a language known to you. In you are not signing the will in the same language it is made in, it is necessary to have the contents of the will be explained to you. The person explaining the contents to you should also put his signature at the bottom of the will with a statement about the will having been interpreted to the testator.

Get it registered
The Indian Registration Act does not require mandatory registration of will, but it is advisable and in your interest to do so. You can register your will with the office of the Registrar. It can be registered without any special process.

Registration ensures that in case of doubt or dispute with regard to the genuineness of the will, the same gets easily resolved if the will is registered. Moreover, in case the will is changed later on, the fact of the will having been registered will help the court in finding out the latest wishes of the person making the will.

Succession laws
If you die intestate i.e., without making a will, then your properties will pass on to legal heirs as per the provisions of succession law applicable to you.

Hindus, Buddhists, Jains and Sikhs are governed by the Hindu Succession Act, 1956. For Christians and Parsis, there are separate inheritance laws. For Muslims, the properties pass on to their heirs as per law interpreted based on their religious texts.

A minor or a person of unsound mind can be a beneficiary under a will. The legal guardian of the minor or the person will take the property on their behalf. However a minor or person of unsound mind cannot make a will and bequeath any property belonging to them.

Scope of a will
You can include all the properties in the will which you can legally transfer. Any property not covered under the will shall pass as per the law of succession applicable to you. It is advisable to have a residue clause in the will to ensure disposal of all the properties which are not clearly mentioned or specifically included.

While passing on your assets, you can also attach some obligations with such bequeath.

However, the value of the obligation cannot be more than the value of the asset being bequeathed. The beneficiary has to accept the bequeath with the obligation, as he cannot opt to take the property without accepting the obligation attached with it.

The writer is CFO, ApnaPaisa.com, a price comparison engine for loans, insurance and investments. He can be reached at balwant.jain@apnapaisa.com