WILL

WILL

A Will is a sensitive topic. People are not comfortable discussing a Will in India. There is a misconception that if someone tells to make a Will, the person thinks that nothing is going to happen to him or he doesn’t have any assets or he thinks indirectly you are telling him that his end is near or that you are eyeing his property. However, all apprehensions disappear when I make them understand the consequences of not making a Will. I have shared some information on Will.

What does Will mean?

Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

The person who makes the Will is called “Testator” and the person who inherits property under a Will is called the “legatee” or “beneficiary”.

The testator will express his intentions about distribution of his property amongst his sons/daughters/relatives/friends when he is alive, but it will come into effect only after his death.

The essential characteristic of a valid Will are as follows,

• There must be a legal declaration,
• Such declaration must be with respect to the properties of the testator,
• The declaration must be intended to operate after the death of the testator.

Who can make a Will…?

As a general proposition of law, every person of sound mind who has attained the age of majority may dispose of his property by Will. Persons capable of making Will contains four Explanations which are as follows:

Explanation 1 stipulates that a married woman may dispose of by Will of any property which she could alienate by her own act during her life.

Explanation 2 stipulates that persons who are deaf and dumb are not thereby incapacitated of making a Will if they are able to know what they do by it.

Explanation 3 lays down that a person who is ordinarily insane may make a Will during an interval in which he is of sound mind i.e. during lucid interval.

Explanation 4 imposes a bar saying that no person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause that he does not know what he is doing.

Apart from that, so far as Hindus are concerned, it is the consistent view of all the courts that a Hindu who has not attained the age of majority prescribed by the Indian Majority Act cannot execute a valid Will. It has also been authoritatively held that a person who has not the capacity to comprehend the extent of his property and the nature of the claims of all people whom he is excluding from participation does not possess a sound disposing mind to execute a valid Will. To put it in precise terms, a Hindu who has attained majority and is of sound disposing mind may bequeath by Will whatever property he or she is entitled to give away during the life time.

Example

1. A, can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not competent understandings as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his Will. Mr. A cannot make a valid Will.
2. A, executes an instrument purporting to be his Will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid Will.
3. A, being very feeble and debilitated, but capable of exercising a judgement as to the proper mode of disposing of his property, makes a Will. This is a valid Will.

Will helps in

• Wills helps in clarity regarding distribution of properties. If you have a physical property it should be specifically distributed to avoid the disputes.
• Will allows you transfer of offshore assets. Suppose you have assets in India as well as outside India. So, should you make one Will which covers both the assets? Or should you make separate Wills in each country where you have assets? So, the answer to this question depends on the types of assets you have. If you have movable assets even a single Will be sufficient to cover all the assets. But if you have immovable assets outside India or in multiple countries then separate Wills for each country is advisable. Immovable assets take the law of the land where the asset is situated.
• Will can allow you to disinherit certain relatives. If you want someone among your legal heirs not to have any assets of yours post your death then making a Will is compulsory. If you die without making a Will, this person as per succession law might get some part of your assets.
• Tax Saving. For example: Let us suppose that a person preparing the Will has a son and a wife. If there were no Will, both would inherit his assets in equal proportion. But in order to save subsequent taxes, it might be better to distribute the assets not to the son but to the son’s wife, as well as to the grand-children. This can easily be achieved through the Will.

Important points while making Will:

• Will must be signed by the testator. Ideally the person should sign on all the pages of the Will but at least on the last page signature by testator is must. Unsigned Will is invalid.
• What happens if a person signs all the pages of the Will and forgets to sign the last page? The Will is invalid. The last page signature is compulsory in India.
• If suppose a person has two Houses. If he gives one house to one of his Son today and the other house to the other Son after his death. It’s not a Will it’s a settlement.
• A Will must be attested by at least two witnesses. Minimum two witnesses I.e. there can be more than two witness in the Will. A witness need not read the contents of the Will before signing it. A witness is no more required by the law to know what is written in the Will. Witness should see the testator signing in front of him. A witness should be a person of integrity. A person who is younger and healthier than you most likely to out survive you.
• It is not considered necessary that any technical words or terms of art should be used in a Will.  The wording should deem such that the intentions of the testator is clear.
• The Testator should appoint an Executor to his Will. An Executor is a person who shall implement the Will after the Testator’s death.
• The Testator cannot give any property that is joint family property or ancestral property that is common to many other members too. Such a Will becomes void.
• A Will needs to be drafted by taking into consideration the implications that shall follow the beneficiaries and it is better to keep the beneficiaries informed of the same.
• If a Will is lost, it is then presumed to be revoked. If the Will was seen with the testator, but could not found after the death of testator, it is presumed that the same has been revoked by the testator by destroying the same.
• A father, whatever his age may be, will appoint a guardian or guardians for his child during minority.
• When you settle the property the income tax implications are different then when you Will. Inheritance is invariable tax free.
• A Will need not be typed, stamped, or registered.
• Will can be revoked and subject to alteration at any time during the life time of Testator.
• A Will is a private document till you are alive. Confidentiality of Will is partial.
• A proper method of preserving the Will can be done by ensuring that it is registered as it would give it a two-fold benefit, one of having a documentary presence and two of ensuring the legal validity over an unregistered Will.