Remember, it is never too early to make a will!!!
If you should die without a will
Whose pockets will your money fill?
The ones you truly want to have it,
Or Someone Else who’ll gladly grab it ?
Consider these important ‘ifs’
Alas, ignored by countless stiffs…
Death is a phenomenon, which can strike any of us at any time, without the slightest of warnings. Today, unfortunately we are living in a highly materialistic world, where ownership of material assets has a great deal of meaning then humanly relationship. Moreover, the rise in levels of education, booming economies are some of the factors that have led to a growth in the fortunes of us average middle class Indians.
Even after the ongoing pandemic and ongoing deteriorating health conditions we ignore the eventual possibility. We tend to think that death is still far away from us and will plan when the time comes as we are still too young to die. This is the most common mistake all of us make, for strange are the ways of nature – the calling can come anytime and we must be prepared when it comes. I do not mean to sound like a pessimist, but what harm is there in making a choice as to how we want our life’s earnings to be distributed amongst the ones we love?
WHAT IS A WILL ?
“Will” IS DEFINED IN SECTION 2(h) of the Indian Succession Act, 1925 to mean the declaration of the intention of the testator with respect of his property which he desires to be carried into after his death. In a simple language “Will” is a deposition of property made by person during his lifetime but is intended to take effect after his demise only.
The two essential and primary characteristics of a Will are –
i. It takes effect after the death of the testator.
A will is a disposition of property made by a person during his lifetime but is intended to take effect after his demise only. Thus a Will takes effect only on the death of the executant or the testator. In Ramb. Lakshman 5 Bom 630, Hon’ble court held that a gift to take effect during the life time of the donor is a deed of settlement and not Will.
ii. It is revocable during the lifetime of the testator.
During the lifetime; Will remain an ambulatory document which can be revoked at any time without having any legal difficulty whatsoever. Further as per section 63 of the Indian Succession Act, 1925 provides that a Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will.
KINDS OF WILL –
The Wills, according to their nature and characteristics, may be classified as under:
i. Contingent Wills
ii. Joint Wills
iii. Duplicate Wills
iv. Concurrent Wills
v. Holograph Wills
vi. Privileged Wills
LAW OF WILLS –
The law of Wills is contained in Part VI of the Indian Succession Act, 1925. All the provisions of the Part VI of the Indian Succession Act, 1925 do not apply to Hindus, Buddhists, Sikhs and Jains. The provision of the Part VI of Indian Succession Act, 1925 which applies to Hindus, Buddhists, Sikhs and Jains are enumerated in the Schedule III of the Act. Further by the virtue of Section 30 of the Hindu Succession Act, 1956 a Hindus, Buddhists, Sikhs and Jains may execute a Will in accordance with the provisions of the Indian Succession Act.
The relevant Section-30 of the Hindu Succession Act, 1956 reads as under – Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.
WHO CAN MAKE A WILL?
As per the eligibility
- Testamentary capacity and sound disposing mind
- Knowledge of contents
- Free from undue Influence/Fraud/Coercion
- Voluntary Act
WHY MAKE A WILL?
Making a Will is the only way to ensure that a lifetime’s work is passed on to the people you choose. It provides security for those who are close to you and for those you are responsible for, and may avoid unnecessary difficulties upon your death.
Your Will may be used to provide for the guardians of your children (under 18 years old) and to arrange for their maintenance and education.
Should you die without a Will (intestate) your estate may be divided according to a Government formula (the laws of intestacy) – a formula that may not reflect your wishes, and which may cause undue hardship, cost and delay for your family.
Eligible family left out of a Will may bring an action for greater provision under the various laws, as we have seen in the case of so many prominent property disputes in public.
A Will is a document that ensures that the distribution of property and assets is carried out according to the wishes of the holder (testator) after his/her death. The absence of a Will is likely to put the testator’s family in a predicament about determining valid ownership. Despite this, the trend of framing a Will is yet to catch up in India.
LEGAL FORMALITIES OF A WILL
There is no set form of a Will in India and it can be written in any language, as long as the words are coherent and explain the intentions of the testator clearly.
Besides, a will does not require a stamp duty and need not be written on a stamp paper. A Will can even be made on plain paper, written by hand, in any language, and it shall have the same validity as the one prepared by a legal professional. The following formalities need to be catered to for a Will to be effective:
Attestation: A Will must be duly signed by two witnesses in the presence of the testator as well as each other.
Registration: The process of registering a Will entails getting the document attested by an officer at a registration office. The officer, after examining the identity of the testator, places the Will in safe custody to ensure that it is not tampered with, destroyed or stolen.
In India, registration of Will is not mandatory, even if it concerns an immovable property.
Regardless of whether a Will is registered, it must be duly executed under the Indian Succession Act.
AMENDMENT OF A WILL
A Will once made is valid till such time until it is revoked. Moreover, law has afforded us the freedom to make as many wills as we desire, but only the last one will be considered as the final will. Therefore, with the change in circumstances in life, we have the liberty of choosing how we want to distribute our property.
Remember, it is never too early to make a will!!!
Adv. Raghavendra Mehrotra, Founder & Managing partner of Lawkhart Legal and Team of Lawkhart Legal
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