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September 21, 2020

Learn how to prepare a legal will in India

by CA Shivam Jaiswal in Corporate Law

Learn how to prepare a legal will in India

The economic impact of the 2020 coronavirus pandemic in India has been largely disruptive. The lockdown though necessary has led to a disastrous impact on the economy. As COVID-19 left many of us working from home surrounded by our families and loved ones, it was inevitable that we started to think about how well we are prepared for our futures.

A will is a legal declaration a person makes about the way they want their property managed or distributed after their death. In simple terms, a will is a legal document that dictates how you want your assets to be distributed after you die. Although a will is a legal document, there isn’t any prescribed form it must take. For instance, you don’t need to write a will on stamp paper and it can be either typed or handwritten. However, a handwritten will is preferred as it is more difficult to reject. According to the Indian Succession Act of 1925, anyone who is of sound mind and who is not a minor can make a will.

What are the essential elements of a will?

To have a legally valid will one needs to have following clauses in their will-

  • Personal Details – one has to clearly give his personal details in the will. One has to specify details like son/ daughter of, residential address, age, date of birth, etc.
  • Declaration of Date – the date on which the will is being prepared has to be mentioned. It helps the court to identify the last and the valid will, in the case of multiple wills.
  • Validate Free Will – one has to clearly state that he is making the will with his free consent. He has to specify that there is no undue influence or coercion or pressure under which he is writing the will.
  • Provide Executor’s Details – an individual needs to nominate an Executor in his will. The Executor is the person who is responsible for executing the will. Along with providing the executor details, the testator should add a clause describing what would happen if executor dies before the testator.
  • Details of Assets– one can dispose of movable and immovable property through a will. The testator has to give details of all kinds of property that he wants to dispose of. In the case of immovable property like house, land, etc. he has to give a proper address. In the case of movable property like bank deposits, mutual funds, share, etc. he has to give authentic identification numbers. The testator should also specify the mode through which income generated from these assets would be distributed to the beneficiaries.
  • Liabilities of the Testator – testator should specify any liability that he owes and the mode of settling that liability through his assets. He should also specify the mode to settle probate charges and executor fees.
  • Name of the beneficiary (ies) – the testator has to mention the name and some personal details of the beneficiary so that the court can identify the individual. The testator can describe the relation like my wife, my son, my daughter, etc. In case, where the beneficiary is a minor, the testator should specify the legal guardian of these minors. In case, where the beneficiary is a daughter, the testator should specify different situation regarding her marital status.
  • Signature – testator has to sign the will at the end.
  • Signature of Witnesses – there is a requirement of getting the Will tested by two witnesses. The testator has to specify the father’s name and the residential address of the witnesses.
  • One can also include addition to make amendments or to alter the will. The testator can change the beneficiary, executors, assets, liabilities, etc. by adding codicil in the will.

Including all the above-mentioned elements would reduce the chances of ambiguity in the will.

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How should one make a Will in India?

Step 1: All the essentials of a will as mentioned need to be adhered to. 

Step 2: It is advisable to consult the family lawyer before drafting the will. A will can either be drawn by the testator himself or through his lawyer.

Step 3: Designate an executor. The executor acts as your personal representative who manages and distributes the assets of your estate. Make sure the person you choose is honest, reliable, trustworthy, and willing to act as your agent. In the event your first choice is not available, appoint an alternate.

Step 4: Appoint a guardian. It is important to name a guardian to care for your minor or dependent children in the event you are the last surviving parent or the surviving parent is unfit to care for them. Otherwise, the court will appoint someone. You want to choose someone who is not only prepared to take on the responsibilities of raising your children until they turn 18 but who is also close to you and your children.

Step 5: Name the beneficiaries. Beneficiaries are the people who stand to inherit your assets after you die. Your beneficiaries may include your spouse, children, relatives, and close friends, among others. Make sure to include the full names of your beneficiaries in your will so as to leave no doubt as to their identity.

Step 6: Designate the assets. Make a list of your assets and decide who will inherit what. If you plan to disinherit a family member, make sure you name the person in your will and the reasons behind your decision, if you so choose.

Step 7: A will is executed by ensuring the signature of the testator in the presence of the two witnesses and their signatures as well. 

Step 8: It would be beneficial if a will is registered and properly stamped as it helps in ensuring proper execution. 

Some pointers to be followed to make an error-free will:-

  • All names should be written in full and should match those in an official document like Aadhaar or PAN card.
  • Update the will if there’s any change in the assets bought or sold, or in the name or status of beneficiaries, or if you want to alter the beneficiaries.
  • Be as specific as possible about each asset, listing addresses, company or scheme name, account numbers, amount, etc
  • Every page of the will should be signed by the testator and witnesses. Any correction should also be countersigned by the testator and witnesses.
  • Signatures should ideally match those in a recent valid document
  • Avoid using complicated or technical legal terms
  • Don’t make the beneficiary a witness as it is illegal to do so.
  • You don’t necessarily have to list the assets and beneficiaries in a tabular form. You can write about each asset separately in sentence form as long as you specify all the details about the asset, beneficiary and your relationship to the beneficiary.
  • Make sure you have two witnesses. Importantly, they should sign the will in your presence and witness your making and signing the will in their presence.
  • If the testator is a senior citizen, it is advisable to have a doctor’s certificate vouching for the testator’s soundness of mind

Procrastination and the unwillingness to accept death as part of life are common reasons for not having a will. Sometimes the realization that wills are important comes too late, such as when an unexpected death or disability occurs. To avoid the added stress on families during an already emotional time, it may be wise to meet with an estate planning lawyer to help you draw up a basic estate plan at the minimum, before it’s too late.

Everyone should have a Will, no matter their age or circumstance. Especially at a time this when the word is facing a pandemic, it is important we all feel secure that our families will be suitably cared for when the time comes and creating a Will is a way to do this. It is important to review your will every five years to ensure that it’s up to date and still reflective of your future wishes.

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