What is Will?
A will is a legal declaration of how an individual wishes to distribute his assets after he passes away. This is a unilateral document that takes effect upon the death of an individual, which allows you to determine how your wealth, property, and assets will be distributed after your death.
Although a will is a legal document, its format is not specified, as it is usually handwritten or typed on any document, not on stamp paper. It is also possible for the owner of a Will to revoke or alter it at any time before his/her passing.
Essentials of a valid Will:-
There are several important characteristics of a Will:
- Only after the testator’s death can the will take effect.
- The Will is a legal declaration of such an intention.
- Property disposal must be included in the declaration.
- It is possible for a testator to revoke or alter their Will during their lifetime
Who can make a Will?
According to the Indian Succession Act, 1925, the person making the will must be of the following age groups:
- Sound mind
Moreover, Section 59 allows an individual whose mind is ordinarily unsound to make a Will during the interval when it is sound. A person is prohibited from making a Will if he or she is intoxicated or ill and unable to comprehend the consequences.
What should be included in a will?
Wills should include the following details:
- Details of the testator – Name, age, address, and other details will help identify who is making the will and when it will be drawn.
- Declaration – The testator should declare that he/she is of sound mind and is not under any coercion when drawing the will.
- Details of the beneficiary- A detailed description of who will benefit from this will and to whom the assets will be divided should be included in the will. They should include their name, age, address, and relationship to the testator.
- The executor of the will – Choosing an executor who will execute the will according to the directions provided by the testator is extremely important. It is also necessary to specify the testator’s name, age, address, and relation to the testator.
- Details of property and assets – Testators should include all the details of all their assets and properties in their wills. Any other specific assets can also be listed.
- Division of share- Each beneficiary’s share of the property or the specifics of who will receive what should be detailed in detail. A custodian for a minor should also be included in the will if the asset is to be given to the minor.
- Specific Directions – In executing the Will, the testator should provide direction and specify if there are any instructions.
- Witness – The testator should sign in the presence of at least two witnesses. It is not necessary for the witnesses to know the specifics of the will; they just need to verify that the testator signed in front of them.
- Signature – After the last statement, the testator should sign the will with the date.
Is it mandatory to register a Will?
The Registration Act, 1908 specifies which documents require registration. A will is covered under clause (e) of section 18 of the Registration Act, 1908.
Registration of Will is not mandatory and depends on the testator’s preference. Registrating a Will requires a visit to the local sub-registrar’s office. The testator’s appearance before a government official with the original Will increases the Will’s reliability and trustworthiness. Registered wills provide strong legal evidence against challenges regarding the mental capacity of the testator to make a Will (whether due to illness, alcoholism, or medication).
The importance of registering a will :
Registration reduces the chances of the Will being challenged as a forgery. The challenge of a Will being signed under undue influence, however, is still open. Registration also provides the advantage of safekeeping the Will at the Registrar’s office. It is only possible for the testator or his agent to withdraw his Will from the Registrar during his lifetime. When a testator dies, the Registrar may permit an applicant to take a copy of the Will. However, the original Will is still kept in the Registrar’s office. As a result, the Will will not be tampered with after the testator has passed away.
If a Will is registered, all subsequent Codicils should also be registered. Courts do not accept non-registered alterations, modifications, explanations, or deletions.
TO OBTAIN A WILL
Lawyers / legal experts should draft/prepare a will based on the client’s unequivocal and distinct intentions. The drafted will is then submitted to the client for approval.
The Sub Registrar office will then schedule a date for registering the Will once it has been approved.
The person will then have to pay the government’s registration fees.
Organizing the witnesses
In order to register, the testator and 2 witnesses will visit the sub-registrar’s office on the fixed date.
The registered will shall be collected after a week and delivered to the client once signed by the person and the two witnesses.