Everything you Need to Know about Drafting a Will

A Will is a legal document containing the declaration of a person regarding the distribution of his/her assets after his/her death. A Will comes into effect upon the death of the testator and defines how his/her wealth, property, and assets will be distributed.

There is no prescribed form of a Will and it can be handwritten or typed on any document and not just stamp paper. A Will may be revoked or altered by the owner at any time before his/ her death.

What is the need of drafting a Will?

For a wealthy person, having no will after his/her death would result in a fierce legal battle among their family members as everyone would want to get a lion’s share of the wealth left behind. Even if such a person just nominates a person as a beneficiary, it won’t solve the purpose. This is because nomination can be done only for financial products like bank accounts and deposits, insurance, shares, mutual funds, provident funds, etc, but that too only provides a custodian right to the nominee and not an absolute right to own it. So, a nominee will receive and hold the property of the deceased until the nominee is legally bound to transfer or distribute it to the legal heirs of the deceased as in most cases the Indian Succession Act prevails over the nomination. Moreover, in the case of physical assets, like house property, land, gold, etc, there is no provision for nomination. It’s only the Will that provides the beneficiary with an absolute right to own property after the demise of the owner. The Indian Succession Act can’t take away the rights of a beneficiary named in a Will. So, it’s the Will that may put into rest the possibility of disputes regarding ownership of the wealth left behind by a wealthy person.

Who can draft a Will?

To be eligible to draft a Will, a person should be a major (18 years of age or more) and with a sound mind. Section 59 of the Indian Succession Act, of 1925, however, states that a person ordinarily of unsound mind may make a Will during the interval of the soundness of his/her mind. When a person is in a state of intoxication or illness, he/she becomes incapable of understanding the consequences of the act and hence can’t write a Will. A Will can be revoked or altered at a later stage by the testator.

Ingredients of a Will

The following details are to be included in a Will:

• The name, age, address, and other details of the maker of the Will – who is also called a testator – are needed to establish the identity of the person making the Will and when it is being drawn. 

• While drawing a Will the testator should declare that he/she is of sound mind and free of any coercion to make it a valid one.

• The details of who shall be benefitting out of the Will and to whom shall the assets be divided should be given specifying their name, age, address, and relation to the testator.  

• A Will should contain the details of the assets and properties that a testator has, and which are the ones that shall be covered in the Will. The testator may also list out any specific assets that are there.

• A Will should mention the share that each beneficiary has in the property or the specifics of who shall get what is to be listed in full detail. In case an asset is to be given to a minor, then a custodian for the minor should also be listed in the will.  

• Will should direct all the payments to meet various liabilities added during a lifetime and expenses incurred after the death of the testator to be made. 

• Along with giving directions in terms of executing the Will, the testator should specify if there are any specific instructions. 

• After the completion of the drafting of a Will, the testator should sign it with the date after the last statement. 

• The testator should sign the Will in the presence of at least two witnesses. The witnesses just have to verify that the signature by the testator was done before them and do not need to know the details of the Will. 

• The appointment of an executor is necessary for the proper execution of a Will. The executor would ensure that the Will is carried out according to the directions provided by the testator. The executor’s name, age, address, and his/her relation to the testator should also be specified in the Will.

Revocation of Will

A Will may be revoked or cancelled in the following circumstances:

• A Will shall be presumed to be destroyed, if it cannot be found after the death of the testator and was last seen in his possession. In such a case the Will may be revoked.

• The previous Will gets automatically revoked if a subsequent Will is executed.

• If the testator declares in writing his/her intention to revoke the Will, it can be taken to uphold the new Will and revoke the previous one.

• If the testator destroys the existing will by tearing, burning, or by other means, it may be considered that the testator has shown his/her intent of destroying the Will through action. 

• If an unprivileged Will is created at a later stage, it shall overrule the prior privileged Will.

• If the testator gets married after writing a Will, the Will shall be deemed to be revoked. This is done to safeguard the interests of all the relevant parties as per an important principle under the Indian Succession Act.

How to challenge a will in India

Challenging a will in India involves a legal process that must be followed. Here are the general steps to take:

1. To challenge a will in India, you must be an “interested person.” This means you are either a beneficiary under a previous will or are entitled to inherit property if the current will is declared invalid.
2. You will need evidence to support your claim that the will is invalid. This could include witness statements, medical records, and other relevant documents.
3. It is highly recommended to hire a lawyer who has experience in estate law to guide you through the process.
4. Your lawyer will file a petition in court challenging the validity of the will.
5. You will need to attend court hearings to present your evidence and arguments.
6. In some cases, it may be possible to negotiate a settlement with the other party to avoid a lengthy court battle.
7. The court will make a decision based on the evidence presented and will either uphold the will or declare it invalid.

It is important to note that challenging a will can be a lengthy and costly process, and there is no guarantee of success. Therefore, it is advisable to seek legal advice before proceeding.

Offline drafting of a Will

The Indian Succession Act, 1925, does not mandate any particular form for making a will. However, the will must meet certain requirements to be valid:

1. The will must be in writing: A will must be in written form, whether typed or handwritten.
2. The testator must be of sound mind: The person making the will must be of sound mind at the time of making the will.
3. The will must be signed by the testator: The will must be signed by the testator or by someone who signs on their behalf in their presence and by their direction.
4. The will must be attested: The will must be attested by two or more witnesses who have witnessed the signing of the will by the testator.

Once a will is created, it is recommended to keep the original in a safe place and provide copies to the executor and beneficiaries. It is also a good idea to review and update the will periodically to ensure it reflects your current wishes and circumstances.

Registration of Will in India

In India, registration of a will can be done under either Indian Succession Act,1925 or the Registration Act, 1908.

• The Succession Act: the registration of will is not mandatory but can be done voluntarily by the testator or their legal heirs after the death of the testator. 
• The Registration Act: the registration of a will is a formal process of recording the contents of the will in the books maintained by the Registrar or Sub-Registrar.The registration of a will under the Registration Act provides the document with a presumption of genuineness, correctness and validity.

Note: The registration of a will under either of the acts requires the presence of the testator and two witnesses, along with the payment of the prescribed registration fee. After the registration is done, the testator or their legal heirs can obtain a certified copy of the registered will.

Final Thoughts

A Will is a document that helps a person express his desire to pass on his/her wealth to one or more desired person(s). With its capacity to supersede succession laws, a Will is the most effective document to pass on wealth from one generation to the next generation.

Frequently Asked Questions (FAQs)