Concept of Will

A Will or testament is a legal declaration by which a person, the testator, names one or more persons as the executor to manage his/her estate and provide for the transfer of his/her property after his death. A Will can be made by anyone above 21 years of age in India.

The will can however be made only for self-acquired properties and not for ancestral properties. Even future properties can be bequeathed which accrue to the testator after the execution of the Will. The Will takes effect after the death of the testator and can be revoked only during his lifetime. A word of caution though is that the testator cannot bequeath his estate to a charity leaving his family in a state of poverty and thus depriving the family, without giving very good grounds for such disinheritance that would stand the scrutiny of a court of law.

NEED FOR A WILL:

There are quite a few advantages of executing a Will, namely:

1. A well-drafted Will helps avoid family dispute regarding the property of the testator and in case a dispute arises, the beneficiary of the estate has a formidable document in his favour.
2. The law of inheritance does not consider the fact as to whether the deceased wished or did not wish to let any of the family members inherit his property and in what proportion whereas by way of a Will the testator can apportion the property as per his wish
3. At times it has been seen that the deceased had properties both immoveable and moveable which his inheritors may not know, however, a Will ensures that all kinds of property are fairly distributed by the testator during his lifetime.
4. It is a very standard legal requirement now for transferring real estate, bank deposits, stocks & shares, interest in the business. A well-drafted & registered  Will ensures the legal requirements are met.
5. The Will ensures that there are no bogus claims after the death of the testator.

ELIGIBILITY TO MAKE A WILL:

1. The testator should be of sound mind.
2. He should be free from any undue influence or coercion.
3. The making of the Will should be a voluntary act.
4. The testator should be fully aware of the contents of the Will.

ESSENTIAL ELEMENTS OF A WILL:

The following checklist in a  Will helps ensure its enforceability:

1. The Will should have the details of the testator, for example name, address.
2. The need for making the Will should be spelt out along with the fact that the testator is of a sound mind and is making the Will voluntarily and there is no coercion.
3. Use of unambiguous language in bequeathing of the estate.
4. The name of the executor (The person named by the testator to execute the testator’s wishes) should be mentioned.
5. The schedule of properties should be appended and
6. The Will should be signed by the testator and attested by two witnesses.

REQUIREMENT OF REGISTRATION:

Though a Will is not required to be registered and can be drawn on plain paper also, it is desirable that the Will be registered. The  registration can be done with the Registrar of Assurances where the testator resides. The Will can be registered during the life of the testator or by the executor or legatee after the death of the testator. Later amendments should also be registered. Registration of the Will ensures that the Will cannot be tampered with, the authenticity of the Will is established, allegations of making the Will under duress can be deflected, the probate of the Will may not be required for getting leasehold properties mutated.

ENFORCEMENT OF A WILL:

A Will can be enforced by the  executor. He is the safe-keeper of the rights of the beneficiaries under the Will. The provision of the Indian Succession Act makes it mandatory for enforcement of rights under the Will only by way of a Probate. However, this bar does not apply to Hindus in India except if the immovable property is in Kolkata, Mumbai and Chennai. Probate means certifying of the Will by a court of competent jurisdiction.

The Executor can apply for a grant of  probate in the court of competent jurisdiction by way of a proper application.

It is advised to execute a  Will in India as per the Indian laws applicable for the assets located in India.