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A Will is a legal document which records your wishes and desires regarding your properties/ assets.
Briefly, by making your Will, you can ensure that after you, your properties and assets are distributed amongst your loved ones and family in such proportion and method you identify under the Will.
The concept of Will is governed by the Indian Succession Act, 1925. Although making a Will is a simple task, there are few rules and parameters you need to be mindful of. If a Will is made contrary to these rules and parameters, such Will may be rendered unenforceable or invalid Will and will not remain of any consequence.
You can make a Will when you turn 18. Any person of the age of majority i.e., above 18 years and is of sound mind can make a Will.
It is recommended that a Will should be created as soon you have acquired few assets of value or when there are dependents in your care.
You may change your Will anytime as per your wishes, therefore you need not wait until you acquire certain substantial assets.
In absence of a Will, the assets/ properties are distributed as per the personal laws. The distribution as per the personal laws is standard and may not be in consonance with your wishes and desires.
Absence of a Will may also cause lot of hardships to the legal heirs, family members of the deceased, who may have to apply before authorities and wait for unprecedented period for acquiring the share.
There is no pre-set expiration date for a Will, once created your Will remains valid and in existence. It will be valid and binding upon your demise upon your beneficiaries.
You may revoke your earlier Will and make a fresh one, in such case the freshly made Will remains valid and in existence and will be considered as your last Will.
Example: If a person makes a Will in the year 2011, it will still be valid in 2023 if he has not revoked it.
However, if a person makes a Will in the year 2011 and makes another one in the year 2019, the Will made in the year 2011 will become invalid.
So a Will is valid till the time it is not revoked or declared unenforceable by law.
To create a valid Will, it is essential that:
It is recommended to include your and witnesses’ photographs on the Will. It is also recommended to add copy of your PAN and copy of the witnesses’ PAN to the Will for identification purpose.
You should include a medical certificate from your general medical practitioner/ doctor which certifies soundness of mind.
If you wish to get your Will registered, you should include a medical certificate to your Will.
To indicate that you have checked each page and the contents are as per your wishes, you should sign on each page. However, this is not mandatory.
There is no fixed format for making a Will. The form of the document is irrelevant if it fulfils the other requirements for a valid Will.
Online Wills are legally valid in India. You can write a WILL online using online platform.
It is not necessary, that any technical words or terms of art should be used in a Will. But it is necessary that the wordings of the Will make your intentions clear.
The Will must capture your exact intention with no uncertainty or contradictions. Contradictory statements or a complicated structure give rise to multiple interpretations and may defeat your actual intention. While making your Will, you do not have to provide any explanation for any specific bequest made under the Will.
Even though a particular bequest is ambiguous or unenforceable the intention of the maker of the Will is given effect. For example, the Maker, by a Will made on his deathbed bequeathed all his property to “CD” for life and after his death, to a hospital named “PQR”. Hospital PQR does not exist, then in such case the entire bequest is not discarded. The Makers wishes of bequeathing the property to CD will be valid.
A void or an invalid Will is unenforceable. This means it is not possible to enforce the Will.
Following are a few instances where a Will can we declared void or unenforceable-
If the happening of a condition mentioned in the Will is impossible, then the Will is to be declared as void. For example, "A” bequeaths 500 rupees to “B” on a condition he has to marry “A”’s daughter. “A”’s daughter was dead at the date of the Will. Due to impossibility of fulfilment of the condition, the bequest is void.
If the Maker does not understand the consequences of the Will, then it cannot be executed.
If any circumstances show that the Maker was not aware of and does not understand the meaning, spirit and effect of the contents of the Will in question, then it can be declared invalid. For example, “A” executes an instrument seeming 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.
If vesting the thing bequeathed is delayed beyond the lifetime of one or more persons living at the time of the Maker’s death, then such a bequest is invalid.
If a Will is not expressive of any definite intention it is void due to uncertainty. For example, if, “B” leaves to” A” all the goods mentioned in the Schedule and no Schedule is found, then the bequest is void.
If a condition mentioned in the Will is immoral or illegal, then the Will is declared as invalid. If “A” bequeaths 500 rupees to “B” on condition he has to murder “C”, then this bequest is void.
A Will, or any part of a Will, which is made under coercion, fraud, or undue influence is void. If, “A”, by fraud and deception, forces the Maker to bequeath a bequest to him, then the bequest is void.
The person to whom property is distributed/ bequeathed under a Will is known as a beneficiary. A beneficiary derives advantage on certain property under your Will.There is no bar or limitation on number of beneficiaries who can receive the benefits of your property under a Will. There can be as many beneficiaries as you desire.Your property can be bequeathed to any person you wish to grant. It can include your spouse, children, relatives, friends, any person who is not related to you, any artificial person (for example, a company), charitable trust, religious trust, non-Governmental Organization, etc.The beneficiaries are the ultimate owners of the property and any person other than the named beneficiary cannot claim any right in the property bequeathed under your Will.You may at your discretion also add some condition to the bequest. When the Will states that a beneficiary can claim the property left to him only by the performance of an act or fulfilment of some condition, or upon the happening of some event, then the bequest to that beneficiary is known as a conditional/contingent bequest.For example, if “A” leaves his house to his daughter “B”, only on the condition she graduates from a four-year university before the age of 23, it is a conditional bequest.
A nominee holds your property in trust. He is a person appointed to hold the property on behalf of your legal heirs or beneficiaries. According to the applicable law, a nominee is merely a trustee entitled to receive the money/proceeds due to a deceased person, on behalf of their legal heirs.A nominee does not become the owner of the property. Rather, the nominee only receives the property in trust and can claim no ownership over it. Thus, your beneficiary/legal heirs’ claim to the property remains unaffected.If the nominee is made the beneficiary of the property under your Will, then the nominee will obtain legal rights over the property and can retain it. Aligning the nomination to the beneficiary under a Will is beneficial from the viewpoint of execution of the Will. The nominee and beneficiaries under a Will can be different people. This will not affect the transfer of the property to the beneficiaries under your wishes under your Will.
On the death of the Maker of the Will, a nominee, is a trustee with the authority to handle assets on behalf of the beneficiary. A beneficiary may receive the Maker’s assets under the laws of succession.A nominee does not become the owner of the property. A beneficiary is the ultimate owner of the Maker’s property upon his death.
Yes, at the time of making the Will, you may make a bequest to an unborn child, but this bequest will be effective and enforceable only if the child comes to live during your lifetime. If the child does not exist during your lifetime, the bequest is void and will have no effect.For example, "A" bequeaths 1,000 rupees to the eldest son of “B”. At the death of the Maker, “B” has no son. The bequest is void.
Yes, a beneficiary, can refuse a bequest made to him under a Will,by preparing a clear and definitive letter in favour of the other legal heirs of the Maker.Where a Will contains two separate and independent bequests to the same person, the beneficiary can accept one of them and refuse the other. If, “A” bequests a ring and a house to “B”, “B” can accept the house and reject the ring if he wishes to do so.
Yes, you may make provision under your Will where along with the property, the beneficiary also must pay off the liabilities that come with the property.Where a bequest imposes a duty on the beneficiary, he can take nothing, unless he accepts it fully. Thus, the beneficiary must pay the liabilities off to accept the property.For example, "A", having shares in (X), a prosperous joint stock company and shares in (Y), a joint stock company in difficulties, regarding which shares heavy calls are expected to be made, bequeaths to “B” all his shares in joint stock companies; “B” refuses to accept the shares in (Y). He cannot own the shares in (X)
Yes, it is required for a valid Will to have at least two witnesses. There can be more than 2 witnesses. A Will attested by a single witness is invalid. Any person who is above 18 years of age and is of sound mind can be a witness to your Will. You must ensure that witness is personally known to you and is reliable. It is recommended that you chose someone who is younger than you to be a witness to your Will.Your beneficiary should not be a witness to your Will. If a beneficiary is made a witness, then any bequest to the beneficiary (or to such witness’s spouse) under your Will shall be void.The signature of the beneficiary as a witness will remain valid and will be considered properly attested. This means that if your beneficiary signs your Will as a witness, he will be a valid witness to your Will but any bequest made to him will be of no effect.
If a witness dies before the Maker of the Will, the Will remains valid. A witness merely has seen the Maker of the Will sign and therefore is someone who can testify, if required in the court of law about the authenticity of the signatures of the Maker of the Will. In absence of Witnesses being alive, the Will needs to be authenticated from court of law.So it is required to have at least 2 witnesses to your Will. If one witness passes away before your Will takes effects, the second witness can prove the Will if required.In the event both the witnesses pass away before the Maker, the Maker should at the earliest instance create his Will again and have it signed by witnesses who are younger in age.
Any properties over which the maker has no claims should not be included under the Will.If there is a civil case ongoing related to the ownership of immovable property like land/house etc., then ideally the Maker of the Will cannot transfer the property without the permission of the court in which the case is ongoing. Thus, such properties may be included in the Will with such background and adequate information.
You can include a general clause in your Will for residual properties/assets (miscellaneous assets that were missed) which specify who should receive ‘residual assets’ and similarly a general clause can be added for ‘all future assets.’Any property not mentioned in the Will, devolves according to the rules of intestate succession. But by including such clause, you can make sure the intention for distribution of any property acquired in future was present in the mind of the maker.
As such there are no specific rules for transfer of the properties. Before the properties mentioned in a Will are distributed, the debts of the Maker should be taken care of. All the pending liabilities should be paid off.The Maker of the Will can, during his/ her lifetime, dispose of the properties owned by him, even if they are mentioned under the Will.
Yes, you can appoint a guardian for your minor children under the Will. It is recommended that a guardian or custodian of the assets is appointed for minor children under the Will. Guardian assumes a fiduciary role as they are responsible for handling a child’s finances and welfare till, he/she turns 18.A parent is a natural guardian of a minor (subject to rules under personal law). However, a guardian may be appointed under the Will of the last surviving parent (testamentary guardian) and in the absence of the same, by a court’s order (appointed by court).
Yes, you can bequeath such properties which are jointly held by you with another person for instance your spouse/ relatives or any third person.
This includes your share in:
(a) any immovable property for example any land, flat, bungalow, farmhouse
(b) movable property for example any cash in hand, bank accounts, fixed deposits, mutual funds, shares, insurance policies, jewellery, and even your pets!
If you own any property jointly with another person, for the purpose of succession laws, such property is assumed to be jointly held in equal proportion by you and such other person/ people.
It is therefore necessary to include all assets; even if your name appears as the second holder on the records.
In fact, under your Will, you can also bequeath your share in the ancestral property jointly owned by the family members.
What one cannot include under his Will is any such property not in the ownership of the maker.
Yes. The process of authentication/ registration of a WILL is simple. The registrar makes the noting of the Will in the register once the Will is presented to him. A fixed fee of Rs. 100, plus an additional fee of Rs. 20 per page, must be paid and a receipt will be issued.
When, on the date of the death of the Maker of the Will, the sole executor appointed under the Will is a minor, the Court may, exercise its discretion and grant letters of administration to a legal guardian of the minor or some other person till the time the minor achieves 18 years of age. When the minor turns 18, probate of the Will is granted to him/her So, if a person dies and the only named executor of their Will is still a minor, the court will appoint a legal guardian for the minor named person to act as the executor of the Will.When the named executor reached the age of 18, they may take over the role of executor.
Yes. An executor can refuse to perform the executorship either orally in Court in the presence of a Judge, or by a written statement signed by the person renouncing executorship.
An executor may not receive or retain any commission or agency charges at a rate higher than the rate fixed regarding the Administrator-General by or under the Administrator-General’s Act, 1913
A living Will comes into effect when the event described in it takes place i.e., when the Maker becomes so ill or incapacitated that they cannot communicate their preference/wishes.
The property is distributed only after the death of the Maker of the Will, because the Will has no legal existence or effect till the death of the Maker.
Yes, certain persons who are described as “dependents” are legally entitled to claim maintenance from the beneficiaries who take the deceased’s property under a Will.
No, capital gains tax need not be paid on property received under a Will.
You can make a Will on your own, but, it is best to consult a lawyer to avoid any legal/ enforcement issues when the Will must be executed.
When two clauses in a Will are irreconcilable, if they cannot stand together, the last clause will prevail.For example, if the Maker, by the first clause leaves his estate of Jamnagar “to A,” and by the last clause leaves it “to B and not to A” then the last clause will prevail and B will have the estate.
No. An executor is the person who administers a person's estate upon their death.An executor is named by the Maker before their death, or else by a court. The primary duty of an executor is to carry out the wishes of the deceased person based on instructions spelled out in their Will. The beneficiaries need not give POA to the executor since he is already assigned by the Maker for executing the Will.
If an executor purchases any part of the property of the Maker of the Will, either directly or indirectly, the sale is voidable at the choice of any other person interested in the property sold.Therefore, an executor can purchase the property of the Maker of the Will at a fair market price if no other person with an interest in the property objects to the same.
When an executor has paid bequest , under the order of a Court, he is entitled to call upon the beneficiary to refund when the assets prove insufficient to pay all the bequests.
When an executor voluntarily pays bequest , he cannot ask for a refund of the amount from the beneficiary even if the assets of the Maker prove insufficient to pay off all the bequests.
If a bequest is made without specifying when it is to be paid, the beneficiary has a vested interest in it from the day of the death of the Maker.If the Maker dies without receiving the thing bequeathed, it will pass on to the beneficiaries.
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