A WILL is best possible document through which a person can make arrangements for handling his or her affairs after the demise. When a WILL is registered, only the ownership of the assets can be questioned, not the bequest of a property to a beneficiary.
A WILL general has three important essentials:
A Testator: The person making the Will
A Bequest: the grant of a movable or immovable property
Codicil: A modification of the Will
There are no rules for what can or cannot be in a WILL except that it should be owned by the Testator. A WILL can record the manner in which a person’s assets such as immovable property (apartment, house, office, any piece of land) and movable properties (share certificates, jewelry, household items, vehicles, artifacts, heirlooms etc.) are to be dealt with in the event of demise.
A WILL is the best way to ensure that the wishes of a person are carried out after demise. In fact, a WILL can even record the person’s last wishes in respect of rituals and funeral arrangements that one wants carried out.
Benefits of a Will
- In the absence of a Will, the decisions on distribution of assets after a person’s death is decided by the Law prevailing in India as per their personal law. (Hindu Succession Act, Indian Succession Act, etc.). The legal heir of the Deceased person has to file a Probate and Succession Case in the jurisdictional Court asking the Court to pronounce the persons who file the case as ‘legal heirs’. Such litigation is time-consuming and an unnecessary expenditure on the grieving family members of the Deceased person and can be avoided. In case of a Hindu Undivided Family, or a dispute in the family, a long-drawn out legal battle may ensue leading to unpleasant family interactions and financial strain.
- The grieving family members do not have to fight amongst each other or undergo the legal process.
- The ultimate Will of the Testator is respected and not the rule of law. As such, Testator can give his movable and immovable properties to the person or institution of his or her choice, and not necessarily blood-relatives only.
How are Wills made?
- The Testator must make a list of all the assets that the Testator owns and attach copies of the relevant documents for ease of execution of the Will. The more detailed the better! Eg. Life Insurance Policy, Share Certificates, Fixed Deposit statement, Bank Account information, etc.
- The WILL must be signed by the Testator, an Executor and 2 witnesses who can ensure that the WILL is given effect to after Death of the Testator. The choice of Executor and Witnesses must be made carefully, as it is a fiduciary role. It can be a friend, family member, trusted person and even a lawyer.
- Once a WILL is made, it should be handed over to a trustworthy person to execute after the Death. Ideally, the Executor must be someone close enough to the family to know of the death so that he or she can inform the family of the existence of the WILL, but not have any vested interest in the execution of WILL so as to render such Executor incompetent.
Registration of a Will
While registration of a WILL is not mandatory, it is required for enforcing it. Once a WILL is registered, it is an absolute document, and no one can question its authenticity by challenging it.
In fact, if there are multiple WILLS executed during the lifetime of a person, registration helps distinguish the most recent WILL.
Changes in a Will
It is possible to amend or modify a WILL if there any changes in the list of assets (deletion or addition). As such, the WILL can be updated by executing a ‘Codicil’ to the WILL. There can be multiple Codicils but if the original WILL changes drastically, then it is advisable to revoke the earlier WILL and execute a new WILL. It is highly recommended that the Codicil be registered and kept along with the Main WILL. As such, it is also highly recommended to ensure that the Executor is aware of the Codicil.