A will cannot be overemphasized in India. A will is a legal document whereby a person declares his wishes on how he would want his property to be divided once he has died.
However, where a person dies intestate, the intestate succession comes into play, though it might not necessarily be in his will.
This article discusses making a will in India with all considerations of Section 63 of the Indian Succession Act in mind, one should make before getting down to drafting one’s will.
When to Create a Will
A will is to be drafted when a person attains the age of majority, that is, the age of 18 in India and has the capacity to make a will.
However, it is not necessary to have a specific time or age for creating a will; instead, it is done based on a person’s suggestion at the time when he develops any assets or he has dependents left behind.
One should write a will during the following phases of life
1. After Marriage: Divide property between spouse and children or other family members
2. After Children Birth: Deciding the guardianship and dividing of assets
3. If someone gets hold of much property: In case someone has some important property, investment in the name of finances or any other material thing, it is ensured through a will to divide all according to your own wishes.
4. In case one is left with the inheritance of deceased relatives, then one would be needed to prepare a will so that there is no legal problem at all.
5. Advanced old age or disease: Sickness and extreme old age generate the urge for preparing a will as soon as possible so that he or she stays peaceful with assured assets.
A will ensures that one’s estate is handled efficiently as well as avoids family conflicts at the time of death.
Knowledge of Section 63 of the Indian Succession Act
Indian Succession Act, 1925 prescribes the Indian laws concerning succession and will.
The Act categorizes into Testamentary Succession, or in other words, transferring property by means of a will, and Intestate Succession or transferring property when there is no will.
According to the Indian Succession Act, section 63 is particularly important to guarantee the will is valid. In this section, the procedure followed for a will to be valid has been discussed.
Important points in section 63
Testator signature
It should be proved that the testator had actually signed the will or he has given the direction for its signature to anybody with the express intent to his presence.
Hence, there cannot be any problem of understanding and confirmation of his will.
Witness testimony
The will is signed in the presence of two or more witnesses who also have to sign the will in the presence of the testator.
Therefore, it gives assurance that a witness does not benefit from a will and stand no interest conflict.
Legal Capacity of the Testator Section 63
At the time of making the will, the testator must be of sound mind and full legal capacity. He or she must not be under any type of coercion or undue influence.
Testamentary intent
The testator’s intent of disposal of property should be clear upon death.
A will cannot simply be a statement of intention or desires but must instead be a valid direction to effect the distribution of assets.
Revocation and Amendment
Any amendment to the will, whether it be addition, deletion or amendment of the provisions has to fulfill the same formality requirements as that of the original will.
A will can be revoked by another will or an instrument of revocation.
Important Points to Consider while Writing a Will
A will has to be prepared with much care and thought so that it is correctly comprehensive, clear, and within the limits of the law. Here are a couple of considerations.
Identification of Assets
Let an exhaustive list be prepared that enumerates all assets including properties, savings accounts, investments, personal effects, and other valuable possessions.
All ownership details and locations should also be included for each asset.
Nomination of Executor
The executor is an appointment to execute instructions from the will of the testator.
This would be someone the testator feels is extremely reliable and capable of aiding in legal as well as other monetary matters dealing with the set of assets at their death, which includes payment of debts made to the relatives and friends listed in the Will.
Select Beneficiaries
Identify everyone who will receive your property, either in equal or special distributions. If you have children, indicate how your assets will be divided among them.
Minor Children and Guardianship
If you have minor children, you should state guardians with whom to take care of their welfare, education, and rearing.
Debts and Liabilities
Then, the will should express who is going to pay outstanding debts or liabilities, including loans, mortgages, taxes, and other financial liabilities.
Alternate Beneficiary
There should be an alternate beneficiary. If the first beneficiary dies before the testator, then nobody will take care of assets.
Specific Legacy Gifts
It involves the situation where certain people are to be left behind in a special way. The inheritance comprises family mementos, ornaments, or paintings.
Such property should be clearly mentioned in a will.
Conflict of Interest Resolution Clause
There is the inclusion of a process for resolving disagreements between the beneficiaries through a clause embedded in the will to avoid unnecessarily litigations among the estates of the beneficiaries after a person’s death.
Witnesses
Two credible witnesses not being beneficiaries, should witness the will. They affirm that the testator voluntarily signed the will and was of sound disposing mind when he did so.
Placing the Will
The Will should be left in a safe place where the person can easily find it when he or she is no longer there, such as with a loved one, lawyer, or in a safe deposit.
The location of the Will also needs to be communicated to the executor.
How to Make a Will in India
Making a will in India is not a tedious process, but one requires to strictly follow legal formalities for the will to be valid and come into effect. Below are the steps to make a will:
Determine Your Wishes
First decide how you would like your assets to be distributed. Identify who you want everything to be left to and include those assets.
Finally, you will decide if you also wish to have any specific orders for your burial or other final stages of your life.
You write your will or get a lawyer write one for you or even through online will-making services. The will must be clear, concise, and comprehensive enough to avoid ambiguity.
He/she should sign it in the presence of at least two witnesses and allow them to put their signatures, too, after seeing him.
They must sign this will in his presence. A will is necessary to establish the fact that it was what the testator actually intended and thus should not be made under coercion.
Role of Witnesses
Ensure that two or more witnesses know they are signing the will. Their role is to confirm the testator as of sound mind and acting freely.
Safe-Keeping of Will: After signing the will, keep it safely. Inform the executor about where it is located.
It makes sense to maintain the original with a trusted individual, such as your lawyer or close family member or in a locker in a bank.
Review and Revise the Will
Life situation can change overtime such as a marriage, childbirth, and many changes in asset. It should be reviewed as frequently as the person deems appropriate to express the current desire of the deceased.
Instructions in Preparing the Will
Before drafting a will, there are legal and practical instructions that are supposed to be kept in mind.
Uses Simple and Clear Language
The language used in the will is therefore direct and clear with no room for any other form of confusion or misinterpretation.
States Your Full Name and Address
The will helps in identification of the testator by stating the full name and address.
Define Beneficiaries Clearly
All the beneficiaries should be named together with their relationship to establish clear identification of the person involved.
Be Specific About Assets
Instead of stating “all my property,” make specific details of each asset, including bank accounts, properties, vehicles, etc.
Do Not Include Personal Wishes
A will should be all about the distribution of assets. Personal wishes, such as religious or funeral arrangements, may not hold up in court, so these should be documented elsewhere.
Summary
A will in India is just one way by which one could ensure that how one wishes goes with one’s property and other assets.
Section 63 of the Indian Succession Act states the formalities of making a valid will, which entails the testator signing it and making sure that besides attaining legal capacity, the will has to be witnessed by two witnesses.
Such aspects that should guide the making of a will include identification of the assets, an executor, beneficiaries, and guardians in case there are minor children.
The will must be done thoughtfully; signed in the presence of witnesses, kept safe, and it is necessary that the individuals are aware of its existence and contents.
Regular review and updating of the will prevent complications and keep it in sync with the wishes of the testator.
Frequently Asked Question
What happens if I die without a will in India?
If you die without a will, your estate will be divided according to the laws of intestate succession. This may not be in line with your desires.
Can I make changes to my will after it is created?
Yes, you can amend or even cancel your will anytime. Any alteration must have the same formalities as when you first wrote your will.
Who can be a witness to my will?
Involuntary witnesses; they should never be beneficiaries from the will in question. Furthermore, they need to be a person of sane mind and at times be able to testify that their testator is the one to sign the document voluntarily.
Do I need a lawyer to create a will?
No one requires a lawyer to draft him or her an estate. Of course, taking a lawyer at hand would rather be recommended mostly if your assets are complicated.
How do I ensure my will is executed properly?
Choose a trustworthy and competent executor to carry out the provisions of the will and ensure the document is properly executed.