WILL for layman! know the basics

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What is a WILL?

WILL is a document in which a person mentions manner in which the person’s property is to be dealt with after his/her death. WILL finds its place in the definition under Section 2(h) of the Indian Succession Act, 1925. A person who makes a WILL is called a testator (male) and testatrix (female).

IMPORTANCE OF MAKING A WILL

1)One gets to decide proportion in which the assets WILL be distributed to the legal heirs or others after one’s death.
2)A WILL minimizes the chances of family disputes.
3)It helps in protecting one’s business, wherein a person may decide whom to give the authority to run the business after the person passes away.
4)WILL allows to distribute the property to charity or any other charitable organization as per the wishes of the author of the WILL.
5)One always has the advantage to cancel the WILL after making it any number of times before his/her death.
6)The legal requirement of the WILL is least and therefore it can be prepared without the help of lawyer

BASIC REQUIREMENTS OF VALID WILL

Point 1:Details of the person making a WILL

Person making the WILL has to state his/her full name (recommended), current residential address, date of the birth.

Point 2:The Declaration
It is necessary to declare that the WILL has been made in full senses without any pressure or coercion from anyone.

Point 3:Mentioning about the last WILL if any
It essential to make it clear whether the present WILL is the only WILL or has the author made any previous WILL which author intends to cancel/repudiate with this WILL.

Point 4:Details of property
The author of the WILL has to mention the details of the property clearly mentioning its description whether movable or immovable.

Point 5:Single ownership or joint ownership
The author of the WILL should not forget to mention in the WILL, whether the assets stated are solely owned by the author or are jointly owned by someone else. In case the assets are jointly owned by the author with someone else, the author has to state the name of the person with whom he/she is the joint owner.

Point 6:Name of the beneficiary
The author of the WILL should clearly state which property goes to whom after the author’s death. There should not be any confusion with respect to the name or identification of the person to whom the property/properties are to be given to.
The author cannot devolve the property to someone who is not existing or to someone who the author anticipates WILL come into the world after his/her death. The person to whom the property is given under the WILL should be alive at the time of making the WILL.

Point 7:Signing the WILL
The author of the WILL has to sign the WILL on each of the page and on the last page of the WILL has to mention the date when the WILL was signed.

Point 8: Attesting the WILL by the witnesses
The WILL has to be attested/signed by two witnesses. The two witnesses should be in position to identify the signature of the author of the WILL and it is necessary that date is mentioned in front of it, however it is not necessary that both the witness should be present at the same time, it can so happen that the author takes signature of one witness at the time and then the other. It is recommended that when the witnesses put their signature on the WILL, they should mention their name, telephone number ,address and date.

OTHER IMPORTANT POINTS TO REMEMBER ABOUT THE WILL

1)A WILL takes effect only after the death of the Author of the WILL and not before.
2)It can be made by any person who is not a minor and who is of sound mind.
3)It cannot be made by a minor or a person who is a lunatic.
4)It is very much necessary that the WILL is made in very simple language and the use of legal jargons should be avoided as much as possible.
5)It can be revoked by the author of the WILL anytime before his/her lifetime.
6)In case there are two WILLs, the WILL which is later in date shall be considered and not the earlier one. Also in the case of two WILLs ,if one of the WILL is registered and other is not. The registered WILL shall be considered valid against unregistered one.
7)The WILL should be attested by two or more witnesses and the witnesses should sign in the presence of the testator.
8)The testator may appoint an executor.
9)Tenancy rights cannot be bequeathed by WILL.
10)A WILL is optionally registrable and therefore registered and unregistered WILL have an equal value in the eyes of law.
11)A WILL can be written on the plain sheet of paper. It need not be notarized or on a stamp paper.
12)The beneficiaries (or their close relatives) in the WILL cannot be the witness to the WILL

13th June,2020

About the Author: Adv Aishwarya Tambe and Adv Amit A. Tungare

Aishwarya is a young practitioner at the bar and specializes in testamentary matters. In a short span of time, Aishwarya has gained much experience in representing and dealing in testamentary suits before Bombay High Court.

Amit is a practising Advocate and Counsel at Bombay High Court. He also appears before various Tribunals and Forums across India. His major areas of practice include Civil Laws, Arbitration, Company Matters, Insolvency Law, Real Estate, Consumer, White Collared Criminal Cases and Corporate Litigation. Amit regularly advises Multi-National Companies, MSMEs, Nationalized Banks, Senior Executives and individuals. He is empanelled as Legal Advisor with leading Corporates and Banks.

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