Will is the legal declaration of the person’s intention making the Will concerning his/her property and assets. We also call the person making the Will the Testator. In the declaration, the Testator mentions the desire to dispose of wealth after his/her death. Will is a very important document and therefore it is extremely critical to understand the essentials of creating a valid will in India.

Unfortunately, creating a Will is ignored during the financial and retirement planning process. It is therefore essential to understand how to make a valid Will in India. A will is a legal document and there are a certain essentials of creating a valid Will. The process requires due care and consideration. Discussion on this subject often leads to feelings that the end of life is near. However, that is not reality. You must be open about this topic and avoid any extreme thoughts, which makes the discussion easier.

One common misconception is to link nomination with the distribution of wealth via Will. Do not confuse here as nomination does not tantamount to transfer of ownership.

A Will acts as a reckoner of wealth left behind by the deceased, and a clearly defined Will avoids any disputes between the heirs. A Will aims to avoid inconvenience to family members. It helps prevent any quarrel amongst family to get their share (whatever is fair in their minds).

Legal backdrop in case of no valid Will in India

As per Section 30 of the Act, a person has died interstate if there is no will. In case a person dies intestate, the property gets distributed as per the personal laws like the Hindu Succession Act, Muslim Personal laws, etc. Under the Indian Succession Act, the amount received from property disposal is equally divided amongst the surviving legal heirs. For instance, if a person dies intestate, leaving his wife, two sons, and two daughters behind, the property shall dissolve equally amongst all the five surviving members. Please note that it is incorrect to assume that estate gets automatically passed on to the spouse. It is also imperative to note that inheritance laws and succession laws are complicated and may vary from one religion to another.

Definition of a Will and different types of Will

Section 59 of Part VI of the India Succession Act, 1925, governs Will. The law states that any person who is of sound mind and not a minor can make a Will. Any person or entity capable of holding a property can be a beneficiary (recipient). Will is a legal document that specifies beneficiaries who would receive the Testator’s assets and properties after his/her death. Will is not cast in stone and can be modified as per the Testator’s wish while alive. Whenever you make any change, mention that the new Will is the latest and supersedes any existing document in this regard to avoid any future confusion.

Types of Will

As per the legal provisions, there are two types of Will – Privileged Will and Unprivileged Will. Section 65 of the Act describes Privileged Wills as the Wills made by the members of armed forces employed in an expedition or engaged in actual warfare (soldiers at the army, navy, or air-force). Law exempts Privileged Will from many mandatory formalities discussed. The leeway is primarily because of the danger imposed on these soldiers, given the volatile conditions at the war zone. One can create a Privileged Will orally as well.

Section 63 of the Act defines Unprivileged Wills. Everyone else other than those who can make the Privileged Will must create an Unprivileged Will. Will is required to be in writing. Law does not put forth or mandate any format to create the Will.

Essentials of a valid Will in India – additional points

One should draft a Will in great detail. This document serves as an exclusive reference point with regards to the distribution of wealth and assets. However, since there is no pre-defined format, consider the few key points listed below:

1. A Will must be in writing and made with the Testator’s consent
2. The wording of any Will must be explicit and clear. Do not use any ambiguous statements
3. Must include details of the parties involved, like the Testator, beneficiary, and the details of property and assets
4. Specify the name and details of the executor of the Will
5. Mention the share/division of property and assets clearly between beneficiaries
6. Add special instructions, if any, to execute the Will after death
7. The Testator needs to sign or affix his mark on the Will in the presence of two or more witnesses. Witnesses don’t need to know the contents of the Will. Signatures of the witnesses are required only to ascertain that the Testator has signed in their presence. Attest the Will by two or more witnesses, each of whom should have seen the testator sign or affix his mark to the Will
8. Testator must sign and put the date of the signature, especially on the last page of the Will

Other factors to consider to create a valid Will in India:

1. Consider attaching a doctor’s certificate on the state of health at the time of signing the Will to avoid any future false claims on mental health conditions
2. Choose witnesses who are younger compared to your age as you want them to be present for a longer time frame
3. Create a few copies of the Will, store them safely, and inform your kin of the locations
4. In the case of ancestral properties, Will does not work straight forward. You may want to seek expert legal opinion in such cases
5. The split of assets and properties should preferably be in percentages or numbers and not values – the value of investments tend to fluctuate, sometimes significantly

Creating a will must form a part of the retirement planning process. Read more about it in my article at the link here – https://decodefinance.in/finance/easy-steps-to-plan-for-retirement/

Is it essential to register a Will in India?

Registration of Will comes with its benefits. However, section 18 of the Indian Registration Act, 1908, makes a will optional for registration. Neither is there a need for a Will to be on a stamp paper. However, there are benefits to getting a Will registered. In case the original Will is tempered or is lost, you can get a copy from the registrar’s office.

Execution of a Will

Upon the Testator’s demise, the person defined as ‘Executor’ as per the Will is responsible for dividing the wealth amongst beneficiaries. Obtain Probate within three years from the death of the Testator to execute the Will. Probate means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the Testator’s estate. Except in other cities, a Probate is necessarily required in Mumbai, Chennai, and Kolkata for the executor to act upon the Will. He/she cannot do the same without obtaining the Probate. The executor must ensure that the distribution process is smooth. You can direct to execute the Will in the Magistrate’s presence or the public notary nominated by the government authorities. (the list of cities indicated are based on current regulation and may change over time, you are required to check laws at the relevant time)

Safe custody of the Will

Under the Indian Registration Act, 1908, there is a provision for safe custody. One can deposit a sealed cover containing the Will, and the Testator’s name (or anyone appointed), with the registrar’s office for safe custody.

Revocation and changes to a Will

Revocation of a Will can either be (1) voluntary or (2) involuntary, where the cancellation is by law. A Will stands revoked when the Testator gets married.

One can make or change a Will as many times as one likes, but only the last executed Will is enforceable. Therefore, it is important to date the signature on your Will and number the versions to avoid any confusion at a future date.

To conclude

Will is the single point of reference to detail your wealth, and it captures how you wish to distribute your wealth. Creating a valid Will is intending to avoid any future disputes amongst the family members. It would help if you did not shy away from this subject. The objective here is not to eye share of your wealth but to ensure that no inconvenience is caused to your family members when you are not here. Another essential objective is to ensure that each family person gets what they deserve, according to you. Never leave the distribution to regulators. Do note that inheritance and Will are a subject matter of excessive litigation and interpretation. You can resort to expert legal advice either when creating a Will or at the right point in time.

————————————————————————————

This article has been authored by Ms. Rooppreet Dhamija. She is a law graduate and has a deep interest in the subject of Intellectual property (IP) rights and Media and Entertainment law. Rooppreet can be reached out on dhamijarooppreet@gmail.com

The co-author of this article is a senior finance professional with over fifteen years of work experience in corporate finance and has an affinity towards the subject of personal finance and investment management. Please leave your comment or share thoughts on this article via email at decodefinance.in@gmail.com. For more articles, please visit the website www.decodefinance.in.

Disclaimer:

The article is based on the author’s knowledge, experience, and understanding of the subject. Any views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the author’s employer (past or current), organization, committee, or other group or individual.

Under no circumstances the author shall be liable for any views or analysis expressed in this note. Further, the views expressed are not binding on any authority or Court. Readers are advised to consult their financial advisor for advice for their specific case.