Life is complex and challenging for every person. They have to struggle hard to earn a living and accordingly plan out his future with investments and savings. When a person has created assets and investments out of their savings, it is but natural that one will want such decisions to have the right consequences.

In this article we will:

• explore the basic tenets of a will and also justify why making a will is essential,
• explore the essential steps which have to be taken into consideration while making a will, and
• discuss the requisite steps to be taken by the legal heir, after the will has been executed in his/her favour. We begin with the understanding of what constitutes a will.

Background to desire

Will is a term emanating from the English Common Law. In common parlance it is known as desire.

In other words a will is a parchment made following the law or a legal medium through which property can be distributed to the legal heirs after the death of the executor or executrix.

This is the only legal medium through which property can be distributed to the legal heirs. One can write clearly and distinctly in whose favour the property shall devolve. It has to be kept in mind that the will shall become operational only after the death of the executor and in no circumstances it will become operational when he is alive.

Privilege (i.e. standard)

Wills are of two types I.e. privileged and unprivileged.

Unprivileged wills can be executed by testators who are not soldiers employed in an expedition or engaged in actual warfare (or an airman so employed or engaged or a mariner at sea), according to the following rules:

1. The testator shall sign or shall affix his mark on the will or it shall signed by some other person in his presence and by the direction of the testator.
2. The signature or mark of the testator, or the signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing of a will.
3. The will shall be attested by two or more witnesses each of whom has seen the testator sign and affix his mark on the will or seen some other person sign the will in the presence and by the direction of the testator or has received a personal acknowledgement. These witnesses must be present when the will is being signed and no particular form of attestation is necessary.

There is another type of a will called an privileged will. It applies to soldiers, seamen and airmen. The rules for making this type of a will are as follows:

1. The will must be written by the testator in his own hand and in such case it need not be attested.
2. It may be written wholly or in part by another person and signed by the testator. In this case also it need not be attested.
3. If the instrument purporting as a will is written wholly or in part by some other person and is not signed by the testator it shall deemed to be his will if it is shown that it was written by the testators direction or that he recognized it as his will.
4. If the soldier or airmen or mariner has written instructions as to his will but has died before the will has to be executed then these instructions will be deemed to be his will.
5. A will made by word of mouth shall be null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged will.

Testing

The person who makes the will is known as a testator. If the person who is making the will is a woman she is known as a testatrix. A person who gets the benefits of a will is known as the beneficiary.

Why would you will?

If one can look at the reasons why one should make a will, then they are many and varied.

If one decides to bequeath the property to his own children is it necessary to formulate a will. The answer to this question lies in the fact that after death it becomes relatively convenient for the beneficiaries to receive the property which has been left for them through the medium of a will, especially when the beneficiaries are more than one. Making a will also prevents disputations as far as property is concerned in the event of death of the testator.

Even if no will has been made by the testator the property can be divided equally amongst the legal heirs. However, if one wants to divide his property unequally then making a will is absolutely essential. Let us assume that the testator has three sons. The elder sons neglected the testator when he was alive and the younger son took care of the testator. So while making the will he can bequeath the entire property to youngest son depriving the elders. However in the will he has to give reasons as to why he is doing so.

Sometimes relations are so strained that the testator might want an individual to be bereft of the entire benefits arising from a property. Suppose Mr. A has a wife, they are not divorced but are residing separately. Mr A wants to deprive his wife from his estate or property. This he can only do through the medium of a will.It is for the reason that if she is not deprived through the medium of a will she can claim her share of the property after the death of the testator.

However it is pertinent to note that natural heirs like wife, son and daughter have a rightful claim over the property of the testator. Suppose the testator wants to deprive his family of the property, then he must give specific reasons for doing so. If these reasons are not spelled out it might be a subject of challenge later on in a court of law.

Can you use white paper?

A common question arises very frequently whether a will if made on plain white paper is acceptable in law. The answer is yes: it is not necessary that it has to be made on stamp paper.

However, if one wants to register it (see below), a stamp paper is necessary.

What can you will?

The testator can bequeath all of his/her property over which he/she has complete ownership. This list would include his/her dwelling place, land, money, jewellery, paintings, royalty from publications, earnings from fixed deposits etc. For this a letter of administration has to be produced before the court by the beneficiary.

Further, there might be property in which the testator might not have ownership like life interest or right of residence. These cannot be bequeathed in the form of a will. In case the testator belongs to a joint family the portion in which he has absolute ownership can be a part and parcel of a will.

Land or a dwelling house obtained through a lease deed can also be a subject matter of a will. However the beneficiaries will enjoy that property till the end of the lease period and not after that. Suppose, the lease period ends when the testator is alive the beneficiary cannot claim title to that property.

Who can will?

In terms of having the capacity to formulate a will, all and sundry cannot become a testator. There are certain rules and regulations which have to be kept in mind to formulate the will. These regulations are as follows:

1. The testator must be of 18 years of age.
2. He/She must not be mentally challenged However, if a person loses his/her sanity later on but he was not mentally challenged at the time of making the will, that will shall be valid in the eyes of the law.
3. If the person is visually impaired or vocally challenged even then he/she can make a will. However, she must be aware of the consequences of the will. For this reference may be drawn to section 59 of the Indian Succession Act of 1925.

Can a will be subjected to changes by the testator?

The answer is in the affirmative and a will can be changed as many times as the testator wishes .The will the testator makes before he breathes his last is the final will. It is but natural that situations change in a lifetime.

As for example the testator has two sons, the elder one is in bad financial condition and the younger one, is relatively well of. So the testator can easily change his will giving more property to his elder son and less to his younger son, assigning reasons for doing the same.

Keep a witness

It is essential to keep a witness when the testator is signing the will. The witness must be an ocular witness to the account that the testator is signing the will. It is better to have two or three witnesses; preferably a doctor and an advocate. A doctor can testify as to the mental stability of the person whereas the advocate can advise him on the legal implications of the will.

The pros and cons of registering a will

It is not necessary to register a will. However if the registration of a will is done the following benefits can arise:-

1. In that event, a copy of the will shall remain with the office of the registry.
2. In case there is tampering of the original will, it can be compared with the will maintained in the office of the registry.
3. In the event the original will is destroyed a certified copy can be obtained from the registry office.
4. If a will is made regarding leasehold property before a probate is obtained it will be convenient to strike out a name or carry out a mutation.
5. For reason of some illness if the testator is unable to go to the registry office the registrar can come to the residence of the testator and the registration can be done in the residence of the testator.

Be that as it may, there are certain disadvantages of registering a will.

1. Normally it is very easy to make amendments in a will but once a will is registered it becomes well-nigh impossible to make changes to the will.
2. A will once registered is amenable to registration each time it is subject to changes.

Although these difficulties do persist, if the testator feels that it is of his best interest to register the will, he can go ahead with it.

What else do you need to know?

Are executors there?

An executor is such a person who will execute the will. It is not necessary that for every will an executor has to be appointed but appointing an executor makes execution an easier process. The testator chooses his own executor and for that reason he / she chooses someone he / she can trust. An executor can be chosen from amongst the beneficiaries. In some cases a solicitor firm can act as an executor. Sometimes the fee of the executor is fixed by the testator himself.

What is the role of the executor?

The duties of the executor are to get a copy of the probate from a court of law. However on the death of the executor or if the executor fails to perform his duties, the beneficiary can do that himself. If the testator had debts during his lifetime those can be met from the property bequeathed in the will.

The will comes into execution after the death of the testator. Therefore it is advisable that the age of the executor must be lesser than the age of the testator. The probate has to be obtained from the local court. Therefore it would be feasible that the executor be from that local area.

A will to make a trust

For those who are issueless or are bereft of any near and dear ones, the testator can bequeath his or her property to a trust, a religious institution or a society for the furtherance of educational needs. If in case a person makes a trust out of a will, he must ensure in that will as to who are the trustees.

The rejection of a will

A will can be rejected if it is done through coercion, undue influence, fraud or importunity. To go into further details, a reference has to be drawn to section 61 of the Indian Succession Act, 1925.

Will is not a gift deed

There are many who cannot differentiate between a will and a gift deed. These two documents are entirely different. If a will is made by a testator, the property doesn’t immediately pass on to the hands of the beneficiary. It will devolve only at the time of the death of the testator. In a gift deed, the donee can receive it in the donor’s lifetime.

Probate

On the event of the death of the testator the property will not automatically devolve on the beneficiary; either the beneficiary or the executor must obtain a probate from the court of law. A probate is a certificate by the court that the will is valid. If a probate is taken a notice has to be given to the beneficiaries so that they can file their necessary objections. Even if no objection is given, a court fee has to be paid before a probate is obtained. Even after a will is made a path is left open for the court to hear objections to the will, if any, by the beneficiaries.

Conclusion

Therefore, the importance of the will cannot be underestimated and it should be the bounden duty of every adult person to make out a will in a detailed and a transparent manner so that the beneficiaries can inherit the assets and properties both movable and immovable without going in for legal disputes or litigation.

Shiladitya Rakshit is an assistant professor at OP Jindal Global University, Sonepat