The need for a WILL
What is a WILL?
A will is a way to ensure that your loved ones get a share of your property in the manner that you wish, even when you’re no longer physically present.
You try to be well organized during your lifetime. Why not avoid confusion, misunderstanding and bitterness that may take place over the distribution of your property, by putting down your wishes formally in a will. A will is a way to ensure that your loved ones get a share of your property in the manner that you wish, even when you’re no longer physically present.
How to make a WILL?
Making a will is a simple process. A person in a sound state of mind and who is not a minor can make a will. If your assets and their distribution are straightforward, you do not even need to consult an expert before making your will.
A will must be in writing, either typed or handwritten (using a pen). Having it typed is preferable to avoid any confusion created by illegible handwriting.
The will does not have to be on stamp paper. Any plain sheet of good quality, durable paper will do. · There is not even any particular format of will prescribed by law. Nor any need to use legal terms. You can write in a simple, straightforward manner, in the language you best understand. If the testator (the person making the will) is illiterate, it can be written by someone else in a language that the testator finds easy to understand.
The testator should sign the will in the presence of at least two witnesses and who should attest it in the presence of the testator. This is to verify that the will was signed voluntarily. The witnesses need not know the contents of the will. If you make any changes in your will or make a new will at a later stage, destroy the old one. This helps in avoiding confusion and disputes at future dates.
Legally, there have to be at least two witnesses who sign in the testator’s presence. It is also better that they sign in the presence of other witnesses, as they can stand good evidence to each other.
Preferably, each should sign on every page of the will. Having a practicing doctor as one of the attesting witnesses is desirable as it helps in proving that the testator was of sound mind at the time of making the will. In case of an ailing testator, the attestation by his attending physician is desirable. It is advisable to choose witnesses who are younger than the testator, A witness or his/her spouse cannot be a beneficiary under the will. Select someone who does not have any vested interest.
You will also have to name a person as ‘executor’ to carry out all the instructions contained in your will. The executor should be someone you know well and trust to carry out the duty. The executor could even be one of the beneficiaries.
Can I leave anything for a MINOR?
If you have a minor as your beneficiary, a trustee/guardian will have to manage the property till the child comes of age. Choose someone who would do so willingly and honestly, if the need arises.
Can I WILL in any way that I want?
The right to give your property as you wish is not completely free. Which means you cannot always put whatever you want in your will. For example, you cannot bequeath all your property to a charity and leave your family in poverty. The freedom to leave your assets to anyone through a will is curtailed by law.
Family members who are classified as dependents are entitled to claim maintenance even if they have been left out of the will. Should you leave everything to one child and nothing to the other, the aggrieved child can challenge your will in court.
Is REGISTRATION of a WILL compulsory?
Although not compulsory, registration of a will is definitely advantageous.
Keeping it in the safe custody of the registrar means it cannot be tampered with or destroyed. People will not be able to examine the will or copy its contents without prior permission in writing, or until the death of the testator.
The registration of the will is done at the office of the sub-registrar in the presence of select witnesses. Some persons, like those who are bodily infirm, etc., are exempt from attending the registrar’s office and can legally request the registrar to visit their residence or hospital.
Appoint trustee/s for minor beneficiaries. Have the will attested by at least two witnesses. Have it registered (if you wish to keep it in safe custody).
What are the things that I should keep in mind?
Put down your (testator’s) name and address.
State that you are making the will voluntarily, in a sound state of mind in case of the aged or seriously ill person, it helps to attach a doctor’s certificate for sound mental health with the will). That all beneficiaries have correctly been named.
That all your assets have been listed, taking into account all debts, liabilities and expenses.
That a realistic assessment of the above has been made.
That the language is clear and unambiguous.
State that it is your final will.
Appoint executor/s (with his/her/their consent).
Read your will carefully if it has been made by someone else. Make sure no suspicious marks are left on it. Re-write your will every 2/3 years, or after a major occurrence in the family e.g. marriage, birth or death.
Check on the tax rules before you gift away something.
Leave specific instructions regarding your funeral or cremation in your will, and also inform someone about them. Include a ‘residuary’ clause to distribute assets that you may accumulate in the future.
Store your will somewhere safe and accessible, if not with the registrar.
Ultimately if you want a perfect WILL and are uncertain that you would be capable of independently make one then you can seek the expertise of an ADVOCATE.
Written by Mahesh Bhagnari