Preparing and preferably registering a WILL is not optional, its necessary. Do understand its value…….

Preparing a WILL and reasons thereof is a topic which can either be handled in simple form or made a bit complicated by dealing with the legal aspects of it. Given that WILL is a document that has far reaching consequences post departure of the individual, I have chosen to cover some of the legal details, even at the cost of making it a bit boring. I suggest to my readers to go through it in entirety to get a good appreciation of various aspects of it.

Why is WILL necessary? We will deal with this aspect, in rather short and quickly, because its simple and logical. Just to list some common benefits of a WILL:

1)  It details comprehensible and explicit instructions about the deceased’s property and other assets, who gets what and how it all gets distributed and managed. It therefore helps in mitigating family disputes.

2) A person making a WILL creates a safety net for his minor children. He can appoint a guardian of his choice and also make any financial arrangements for them.

3) A WILL also details how business, if any, is to be taken care. One can pass on their company and power of attorney to one’s preferred heirs thereby reducing friction in business ventures.

4)In case of remarriage, a WILL ensures that the children from the first marriage are part of inheritance as provided for in the WILL document.

5) The best thing about a WILL is that it is not an irrevocable instrument. A will can be revoked during the lifetime of the testator. A will can also be modified.

6) If a person dies intestate, without a WILL, then laws of inheritance and succession apply. Such laws are extremely complicated and difficult to interpret. Its therefore prudent to have a WILL and not leave your loved ones taking rounds of courts.

7)Another advantage of WILL is that one can make one’s own WILL. There is no legal requirement to get a WILL made by a lawyer. And registration, though preferred is not mandatory.

Given some of the common benefits of making the WILL listed above, it also becomes clear that there is no age for making a WILL, its not a document that one need to prepare at the age of 60 or 70, a person having assets, children, business or even articles of value, emotional or financial, and things to be taken care in case of any unfortunate incidence, should prepare a WILL, and since it can be modified at anytime one can keep updating, both by way of including or excluding items, also people who become acquirer of inheritance.

So having settled the question of Why and when one should make a WILL we will now focus on more legal aspect of it just to ensure that we understand it and execute it correctly.

What’s a WILL? As per Section 2(h) of Indian Succession Act, 1925, WILL means the legal declaration of the intention of a person with respect to his property, assets of all kinds, which he desires to take effect after his death or an instrument by which a person makes a disposition of his property to take effect after his death. A last WILL or testament are a legal document that communicates a person’s final wishes pertaining to possessions and dependents.

Key ingredients of a Will are as follows:

Testator Details – Name, age, address details of the person making the WILL.

Legal declaration – A WILL is a declaration. A WILL is, by which a living person (called testator) declares his desires or intentions. A WILL is never an agreement or contract or settlement. It is for this reason that the beneficiaries of a WILL should not be parties to the WILL.

Intention of testator – A WILL is a declaration of intention of the person making the WILL. By definition, intention relates to the future and is different from statement of narration of facts as at present. A WILL that only narrates the present state of affairs and does not carry a clear exposition of the intention of the testator is not a WILL.

With respect to his / her property – A WILL can only be made with respect to the property that the testator owns or has rights over. The simple rule is that one can only give what one has. There is no way that one can give away something that one does not have.

The details of the properties which the testator wants to give to his beneficiaries under his WILL like the description, the registration number, the date of registration and whether it is his self-acquired property etc. need to be provided. If it is a movable property, then the details and description of each should be clearly and individually mentioned.

Beneficiary Details – In case of multiple beneficiaries, the details of each beneficiary like name, age, address, relationship of the beneficiary with the Testator.

Desires to be carried into effect after his / her death – The Will must state clearly that the testator desires that it comes into effect after his / her death. A renunciation during one’s lifetime does not amount to a Will.

Guardian for Minors – If the Testator wishes to give his property to any beneficiary who is a minor, then definitely he should appoint a guardian who will take care of the minor’s property till the minor attains majority.

Executor of the WILL – The Testator should appoint an Executor to his WILL. An Executor is a person who shall implement the WILL after the Testator’s death.

Signature and Date – The WILL should be clearly dated and signed by the Testator at the place in the document just below the last sentence in the document.

Exclusions – 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.

Further there is another principle, which says that the construction that postpones the vesting of legacy in the property disposed should be avoided. The intention of the testator should be decided after construing the Will as a whole and not the clauses in isolation.

Keep the focus on the key aspects and questions related to making a WILL, there is just one last item I wish to cover and it’s related to Registration of WILL. But before I go there, one disclaimer, I am in no way claiming this to be a comprehensive document related to preparation of WILL, but it does cover most important aspects that one needs to know in order to start the process of getting a WILL prepared.

Should WILL be Registered? As per Registration Act, 1908, Section 18 provides a list of documents for which registration is optional. WILLs are covered under (e) of the said section 18.

Registration of WILL is not compulsory and depends on the choice of the testator. The personal appearance of the testator before a government official with the original WILL adds to the reliability and trustworthiness of the WILL. Registration reduces the chances that the WILL may be challenged as being a forgery. The other advantage of registration is that the WILL is in safekeeping at the office of the Registrar.

In essence, registration does strengthen the WILL in some respects even though it does not make it cast in stone. Registration is advised if there is a possibility that the WILL be challenged by a natural heir.