Essential Insights for Creating a Will

This article will assist everyone by covering all of the procedures and details that must be considered while making a Will. Even knowing how important a Will is and its major role, people still fail to create one. It doesn't seem easy, but consulting an advocate and gaining knowledge about it makes your work easier while creating a Will. 

What is a Will?

It is a legal document that declares how a person's property and assets shall be distributed among his/her heirs after the death. It is a symbol of that person’s intention for the distribution of his/her property or assets. Only the testator can make changes to the will during their lifetime. It can be made either through typing or handwriting on an appropriate document.

Types of Will

Privileged Wills:

Wills are made by individuals who are in exceptional circumstances, such as soldiers, airmen, mariners, or those engaged in active military service. It can be oral or written. Special provisions are made for these Wills under the Indian Succession Act, specifically in Chapter IV.

Unprivileged Wills:

Wills made by individuals who are not covered under the category of privileged Wills. It must be written and signed by the testator and attested by at least two witnesses. These wills follow general legal requirements.

A person capable of making Will

• Section 59 of the Indian Succession Act, 1925 provides that every person of sound mind not being a minor may dispose of his property by Will.
• A married woman can transfer by Will any property she has the right to manage or dispose of during her lifetime.
• A person who is ordinarily insane may make a Will during the interval in which he is of sound mind.
• A person cannot make a Will if, due to intoxication, illness, or any other reason, he/she is unaware of his/her actions.

Role of religion in Will

Hindu Succession Act, 1956, and Hindu Succession (Amendment) Act 2005 govern the making of a Will by an Indian citizen who is a Hindu, Buddhist, Sikh or Jain.

In case the death of a person occurs without making a Will, his properties get distributed to his legal heirs according to the personal succession laws.  Firstly it is distributed to first-degree legal heirs, in case there remain no first-degree legal heirs then the properties go to second-degree legal heirs. In cases where no legal heirs are present at all, then the State would take the property.

Muslims are not governed by the Indian Succession Act, 1956 and their properties are disposed off according to Muslim Law with 2 basic restrictions:

•  bequeath of one-third of their property by Will
• heirs may consent to bequest in excess of one-third of the testator's assets

What shall be included in the Will?

• Details of testators such as name, age, address and other necessary details.
• A declaration needs to be made by the testator of his/her sound mind.
• Details of the beneficiary who is benefitting from this Will need to be mentioned, such as name, age, address and other necessary details.
• An executor needs to be appointed who will make sure the execution of the Will is done as per the wishes of the testator.
• A list of property and assets shall be made that the testator wishes to transfer to the beneficiaries.
• A list shall be made where each share of property and assets is mentioned in detail, along with the details of the beneficiary who is receiving it. If a minor is receiving a share, then details of his or her legal guardian shall be mentioned.
• The testator shall mention the directions that need to be used while executing the Will.
• The two witnesses' details shall be mentioned in the Will, such as name, age, address etc. Also, they need to verify that the testator did sign the Will before them.
• At last, the testator needs to sign the Will while mentioning the date.

Some important Indian Laws related to Will

• The Indian Succession Act, 1925
• The Code of Civil Procedure, 1908
• The Indian Registration Act, 1908
• The Indian Stamp Act, 1899\

Steps to Make a Will

• Listing of Assets
• Choosing Beneficiaries
• Appoint an Executor
• Drafting of Will (Either by Yourself or by an advocate)
• Sign the Will (in the presence of two witnesses)
• Keep the Will Safely
• Registration of a Will

Conclusion

Creating a Will ensures your wishes are truly honoured and prevents disputes or legal consequences among your heirs.

References

[1] Everything you Need to Know about Drafting a Will, Available Here

[2] Step-by-Step Guide to Writing a Will, Available Here