There is a popular saying that we were all born into this world with empty hands, and one day we are to die empty handed too. However, what we leave behind are the worldly possessions, however small or big. After a person dies, the question arises of what is to be done with those worldly possessions.
It is incredibly helpful if a Will has been made to specify how the property shall be disposed of. However, most people are ignorant about making a Will. A big misconception is that Wills are only for people who are wealthy, or they aren’t for people who don’t own anything. Another thought that comes to mind is, “What will my family think if I dedicate certain things in a certain way?”
In reality, however, a Will can be of especial importance and help. The Indian Succession Act, 1925 defines a Will as
“the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death ”.
Any person who wishes to dispose of their property or assets in a way they wish to, is better of by making a will. A person making such a will is known as the testator; while the person’s getting any property are beneficiaries. A will becomes enforceable only after the death of the testator.
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Benefits of making a Will:
- Property is shared based on One’s own decision:
One of the most important benefits of making a Will is that property shall be divided and passed on to the beneficiaries to the testator’s wish. One can decide who will get what, and to what extent of a share after the death of the testator. Seldom, if there is no Will it becomes complicated to share property of a deceased person.
- Prohibits Family Disputes:
Family disputes often take place if a Will is not prepared by the testator, as each person craves to have a larger portion to themselves. This often results in disputes among family members that lead to sore relations. In order to prevent disputes among family members after one’s death it is always advisable to make a will.
- All assets are revealed-
There is always a chance of assets falling into the wrong hands after death. In order to not let the hidden assets go unclaimed it is always better to make a Will as all details of hidden assets are to be mentioned in it.
- Charities and business legacies:
One may want family legacies, businesses, charity or donations to be continued even after their death. Many times this is not possible as these traditions are not kept up or followed by the successors. It is possible to keep such traditions running and contributions can be made for specific periods if these points are specifically mentioned in the Will.
Laws covering a Will & Who can make one:
In India, transfer of property through Wills are governed under The Indian Succession Act, 1925, The Code of Civil Procedure, 1908, The Indian Registration Act, 1908 and The Indian Stamp Act, 1899.
As per Sec.59 of the Indian Succession Act, a testator must be of legal age & of sound mind. It also states that a person who is ordinarily of unsound mind may make a Will when they are of sound mind. However, a Will shall not be made in a state of intoxication or under such an illness which makes one incapable of understanding the consequences of the act.
Essentials of a Will:-
A Will should contain the following necessary elements to be acceptable.
- Basic Provisions:
A will should typically begin with an introductory clause including identifying name, city, and country a testator resides in. One may also add religion to the same.
- Declaration:
The next important part of a will would be a declaration. This means stating that the testator declares themselves to be of sound mind. Along with that the declaration must include that the Will was not made under coercion or force by anyone. This is because, just like a contract, any declaration made under coercion or force is invalid and illegal.
- Beneficiaries:
These would be people who are to benefit from the Will of the testator. All details of the beneficiaries must be included; along with what they are to be benefited with. In other words, who is getting what. - Executors:
An executor is a person who will ensure that the Will be adequately carried out. Such executors name, age, residence as well as the relation to the testator. - Details of Assets:
A Will should include all the details of the assets owned by the Testator. It should include which assets are to be distributed and in what way. One can include all or part of their assets in such Will. All divisions of the property must be adequately expressed. - Minors:
There is never a problem for a testator to dedicate property to any minors. However, it must be clearly mentioned as to who the custodian of such a minor is. - Signature:
A signature of the testator is an important element in the Will. - Witnesses:
There must be a minimum of two witnesses while making the Will. The signatures of such witnesses were also to be recorded.
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Registration of will:
Registration of Will is not a mandatory process under the Indian Succession Act as it is considered to be a complete personal choice of the Testator. However it is always better to register a Will because it provides many advantages and definitive legal backing which diminishes the possibilities of issues arising in future. It also acts as sheer evidence which cannot be easily destroyed or stolen. Other advantages of registering a will are as follows-
- The Will remains in the safe custody of the registrar.
- No person can access or examine it without the permission of the testator before his death thus secrecy is maintained.
- It ensures transparent and secure deals.
Steps of registration:
- Registration of a Will is to be done at the office of a Sub-Registrar or Registrar of a district court under whose jurisdiction the property is situated. Address proofs, photographs and witnesses are required in registering a will.
- Once a Will is drafted, two witnesses are required to accompany the testator to the registrar for registration and signing of the documents.
- Except scanning and other nominal charges no government fees for registration are charged.
- Registration of will normally takes a maximum of 30-45 minutes, however preparation for documentation, witnesses and appointment of sub registrar takes upto 3-4 days.
Documents required for registration:
- A mental fitness Certificate of the testator from an MBBS /MD doctor
- 2 passport size photos
- Two witnesses with their photographs
- Original signed will
- Photo and address proof of the person who has made the will
- Photo and address proof of two witnesses
Drafts
General Will
I, ……………………………………………………………………………….……..
aged……………………………………………………………………………….. year,
residing at…………………………………………………………………………………………………………….………………….. do hereby revoke all my former wills and declare this to my last Will and Testament. I further declare that I am in good mental health and in a sound condition of mind.
1. I appoint Sh………………………………………………………………and Sh……………………….…………..to be the executors and trustees of this my Will.
2. I have my wife……………………………………………………………………….…[NAME].
Unmarried, major son……………………………………………………………….…[NAME].
and one married daughter…………………………………………………………..[NAME].
3. I own the following properties, (a) House……(b) Jewelry etc. (c) Shares in Companies (d) saving and fixed deposit bank accounts with………bank………….branch and some other movable and immovable assets.
4. I bequeath the following assets to my son (HERE write the description of properties)
5. I bequeath the following assets to my Daughter (HERE write the description of properties)
6. I bequeath to my wife all the rest of my assets, including, the balance in my savings bank account with the…………..bank……………………………………………..branch……………………………..…………, cash and other movables and immovable properties.
8. I direct that any amount that may be determined as payable by me by way of debts, dues and liabilities, including direct and others taxes, charges, land revenue, costs, fees, and expenses to be paid by my son or wife.
IN WITNESS WHEREOF, I have to this my last Will set my hand this…………… day of ……………….
SIGNATURE OF TESTAROR
Signed by the above named testator in our presence at the same time and each of us has in the presence of the testator signed hereunder as on attesting.
SIGNATURE………….
SIGNATURE………….
WITNESSES:
1. …………………(Name and Address)
2. …………………(Name and Address)
WILL FOR WIFE AND CHILDREN
I, …………………………………………………………………………………………………………………… ,
aged………………………………. year,
residing at…………………………………………………………………………………………………………………………….. do hereby revoke all my former wills and declare this to my last Will and Testament. I further declare that I am in good mental health and in a sound condition of mind.
1. I appoint Sh……………………………………………………………….and Sh………………………………………….…..
to be the executors and trustees of this my Will.
2. I have my wife……………………………………………………………….……[NAME]. Unmarried, major
son………………………………………………………………………………………….[NAME]. and one married
daughter…………………………………………………………………………………[NAME].
3. I own the following properties, (a) House…………………………………………..… (b) Jewelry etc. (c) Shares in
Companies (d)saving and fixed deposit bank accounts
with………………………………………bank…………………………………………………………………………..…….branch and
some other movable and immovable assets.
4. I bequeath the following assets to my son (HERE write the description of properties)
5. I bequeath the following assets to my Daughter (HERE write the description of properties)
6. I bequeath to my wife all the rest of my assets, including, the balance in my savings bank account with
the………………………………………………………..bank……………………………………………………………………….. …..branch,
cash and all other movables and immovable properties. My wife will not sold any immovable property
received by her under this will without written permission of my son Sh_________________________.
7. I direct that any amount that may be determined as payable by me by way of debts, dues and
liabilities, including direct and others taxes, charges, land revenue, costs, fees, and expenses to be paid
by my son or wife.
IN WITNESS WHEREOF, I have to this my last Will set my hand this…………… day of ……………….
SIGNATURE OF TESTATOR
Signed by the above named testator in our presence at the same time and each of us has in the presence of the testator signed hereunder as on attesting.
WITNESSES:
1. …………………(Name and Address)
2. …………………(Name and Address)
Will in Favour of Minor Son
I, AB, etc. execute this my last will this the ____ day of ___________ in the city of _________voluntarily out of my own free will without any compulsion or pressure from any person and having a second disposing mind.
Whereas I had made a will dated ________ in favour of my wife CD bequeathing all my properties to her ;
And Whereas the said wife died ON _________ leaving EF, aged 12 years as our only son.
1. I hereby revoke the will made in favour of my wife CD on ____________.
2. I hereby declare and bequeath all my properties, movable and immovable, belonging to me or which may belong to me and remain indisposed of during my life-time unto EF, my son aforesaid.
3. In case I should die before the said son EF attains majority, I appoint GH, etc., as an executor under this will, who shall realise all my to outstanding and administer the estate left by me for the benefit of EF, of the said legatee after defraying all expenses of such administration. The said executor shall be entitled during such administration to charge Rs. ______ per month as remuneration for his service till the aforesaid EF attains majority. When the said EF attains majority, the said GH shall handover all the estate then in existence unto the said EF. During the minority of the said EF, the executor shall act as guardian of the said EF and shall look after his education and training in a be fitting and useful manner so as to earn a decent living either as an engineer or as a member of some other noble profession. However, if the said EF attains majority during my life-time and survives me, this provision relating to appointment of the executor shall not be operative and the said EF shall be entitled to receive and appropriate as owner all and every part of the estate left
IN WITNESS WHEREOF I have signed this will in the presence of witnesses hereunder who have attested the same in my presence.
Sd. _________
(AB)
Testator
Signed by the abovenamed AB in our presence at the same time and each of us has in the presence of the testator signed his name hereunder as an attesting witness.
Witnesses :
1. ________________
2. ________________
I have examined the testator and found him in sound disposing mind and as having fully understood the contents of this will.
Sd. _______
Dr. _________
Will With Trust for Wife and Children, Pecuniary Legacies and Annuities
This is the last will of mine ab made this the ……….. Day of ………., 2000, which cancels all my former wills and codicils.
1. I hereby revoke all my former wills and codicils.
2. I appoint CD, EF and GH to be my executors and trustees.
3. I bequeath all my household goods to my wife LN, absolutely.
4. I bequeath all my books, clothes, watch and other personal effects to my eldest son OP.
5. I bequeath;
i. Rs………………….. to my wife aforesaid to be paid as soon as possible.
ii. Rs…………………… to each of my executors who shall prove my will.
iii. Rs…………………… to each of my servants who at my death shall have been in employ for three years immediately preceding my death (or three months salary in addition to the wages then due or accruing.)
6. I bequeath to my said wife LN an annuity for her life of Rs……………. And to my sister RS an annuity for life of Rs. ………… both of which will commence from my death. These annuities will be secured by the appropriation of investments, sufficient to ensure the same out of income therefrom and in case of any deficiency of income, the capital of the said appropriated fund will be liable . After this appropriation, any residuary estate will be free of the aforesaid annuities.
7. The residue of my property , movable and immovable, has to be converted into money by my executors who shall after payment of my debts, funeral and testamentary expenses, invest and settle the same on the following trusts:
a. To pay the income to my wife aforesaid during her life.
b. Subject hereto in trust to pay or divide the corpus to or between all my children or who being male shall attain majority or being female shall attain majority or previously namely, the share which would have belonged to any child already dead or who may die before me leaving issue to go to such issue by substitution per stripes.
8. My wife aforesaid shall have power during her life to appoint a new trustee in case of any vacancy.
IN WITNESS WHEREOF I, the said AB, have signed this will hereunder the day and year first written above.
(Sd.)………………
(AB)
Signed by the above named AB in our presence at the same time and each of us has in the presence of the testator signed his name hereunder as an attesting witness.
1…………………….
2……………………
REVOCATION OF WILL
I, ___________________________________________________,
S/o ________________________________________________,
R/o __________________________________________________, hereby revoke the only will made by me bearing date _________ and modified by several codicils dated ______, ______, ___ and ________ and all other testamentary dispositions whatsoever herein before made by me and declare it to be my intention to die intestate.
IN WITNESS WHEREOF, I have signed this will hereunder on the ________ day of _________
Sd/-
(By the Testator)
Signed by the above named testator in our presence at the same time and each of us has in the presence of the testator signed his name hereunder as an attesting witness.
1.
2.
WILL APPOINTING AN EXECUTOR
I, AA, aged ____________ years,
son of ___________________________________________,
resident of________________________________________, do hereby make and declare this as my LAST WILL and TESTAMENT whereby I leave, bequeath and give to ___________________________(my wife/son/daughter) all my property, movable and immovable which I may be possessed of or entitled to at the time of my death.
AND I HEREBY APPOINT her (or him) the said _____________________________________, sole executrix (or executor) of this my Will.
IN WITNESS whereof
I, the said AA., have hereto signed at_______, this the _______. day of _______, 20
_______ Sd. AA.
SIGNED by the said AA. (or declared by the said AA.) as his last Will and Testament in the presence of us, present at the same time, who in his presence and in the presence of each other, sign as witnesses hereto.
Name and description of the said witnesses.
1.
Sd. BB.
2.
Sd. CC.
Edited by
Rajat Rajan Singh
Editor in Chief at Law Trend
Written by Sai Kulkarni and Apurva Surve (Interns)
