Rudyard Kipling’s famous poem ,
“I keep six honest serving-men (They taught me all I knew);
Their names are What and Why and When And How and Where and Who.”
is a fairly good approach to think through any problem in life…..
So, let us apply the 5 Ws and 1 H in making a WILL
First, WHY MAKE A WILL?
- You can decide how your property should be distributed. If you die without a will, there is no guarantee that your intended desires will be carried out.
- You can decide and plan about the protection of your minor children.
- You can decide and appoint someone who is honest, trustworthy, and organized (which may or may not always be a family member) as the executor who will wind up the affairs of your estate, including paying off bills, canceling your credit cards, and notifying the bank, insurance etc.
- You can disinherit individuals who would otherwise stand to inherit.
- You can make gifts and donations. Be sure to check the current laws to know the gift tax exclusions.
- Avoid family disputes and long pending legal challenges.
- Because you can change your mind if your life circumstances change. A good reason for having a will is that you can change it at any time while you’re still alive. Life changes, such as births, deaths, and divorce, can create situations where changing your will might become necessary.
WHO CAN MAKE A WILL?
- Every person who is competent to contract may make a will but he must be major, sound mind and willing to write a Will.
- Any person who is the sole owner of a self-acquired property can bequeath by way of will.
- A Will cannot be made by some persons i.e. minors, insolvent, persons disqualified under any law by the court. A Will executed by a minor is void and inoperative though a testamentary guardian can be appointed for the minor to dispose off the property.
- A Will can be made by the deaf and dumb person by showing consent through writing or gestures in sign language.
- Nothing prevents a prisoner or alien in India from drawing a Will.
WHAT CAN YOU ‘WILL’:
The testator can bequeath all of his/her property (movable & immovable) over which he/she has absolute ownership. This list would include his/her dwelling place, land, money, jewelry, paintings, royalty from publications, earnings from fixed deposits etc.
What cannot be bequeathed- Property in which the testator might not have ownership like life interest or right of residence eg. share in Hindu Undivided Family cannot be bequeathed, however, if the testator belongs to a joint family the portion in which he has absolute ownership can be a part and parcel of a will. So, be sure to know What Not To Include When Making 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.
WHEN CAN YOU MAKE A WILL?
Because tomorrow is not promised. 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 necessary 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 a competent lawyer to help you make an informed decision of legacy planning before it’s too late.
WHERE CAN A WILL BE MADE/STORED / KEPT?
It is advisable to store your will at a safe and secured location where it cannot be tampered with and it can be easily found by your family after your death. It may be kept in the safe custody of a locker, with a trusted person or with professionals like banker or solicitor who will take necessary steps to inform the executor after your death. Various banks and financial institutions offer custodian services for safe keeping your will. If it is a registered will, then a copy of the will shall be in the safe custody of the Registrar Office.
Hindu NRIs having immovable assets in different countries may execute a joint composite Will pertaining to all their immovable properties located in different jurisdictions and should register the Will separately in every jurisdiction even though it is optional in India to do so. (more on NRI legacy planning in coming blogs)
HOW TO MAKE A WILL?
- Declaration- The person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to write a Will.
- Details of Property and Documents: The next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. He must also state the place where he has kept all the documents if the will documents are under safe custody of the bank then testator has to write details about the releasing of the Will from the bank. Here it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.
- Attestation of the ‘Will’ : At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of at least two independent witnesses, who have to sign after his signature, certifying that the testator has signed the Will in their presence. The date and place also must be indicated clearly at the bottom of the Will.
REGSITRATION OF A WILL
Registration of the Will is Not Compulsory So, Why Should You Register?
In India, registration of Wills is not compulsory. A Will is not a compulsorily registerable document under section 17 of the Registration Act, 1908, (Act). There is no stamp duty payable. The advantage of registering a will evidences that the proper parties had appeared before the registering officer and the latter had attested the same after ascertaining their identity. Once a Will is registered, it is placed in the safe custody of the Registrar and cannot be tampered with, destroyed, mutilated or stolen. However, non-registration of a Will does not lead to any inference against its genuineness nor registration of a will is by itself proof of due execution and attestation.
(More on this in in the next blog)
INVALID WILL AND REJECTION OF A WILL
A will can be rejected if it is done through coercion, undue influence, fraud or importunity as referred under Sec. 61 of the Indian Succession Act, 1925. ( In the coming blogs)