Wills in India - Importance, Essentials and Legal Requirements

INTRODUCTION

Will, also known as a last will and testament, is a legal document that outlines an individual’s wishes regarding the distribution of their assets, property, and belongings after their death. It is a vital document that ensures one’s estate is managed and distributed according to their desires, rather than being decided by the laws of intestacy.

IMPORTANCE OF A WILL

1. Asset Distribution: A will ensure that one’s assets, including property, investments, and personal belongings, are distributed according to their wishes.
2. Appointing Executors: A will allows individuals to appoint executors, who will manage their estate and carry out their instructions after their death.
3. Guardianship: A will enables individuals to appoint guardians for their minor children, ensuring their well-being and care.
4. Tax Planning: A will can help minimize taxes and ensure that one’s estate is not subject to unnecessary tax liabilities.
5. Avoiding Family Disputes: A will can prevent family disputes and conflicts by clearly outlining one’s wishes and intentions.

TYPES OF WILLS

1. Simple Will: A basic will that outlines the distribution of assets and appoints executors.
2. Joint Will: A will made by two or more individuals,
3. Living Will: A will that outlines one’s wishes regarding medical treatment and end-of-life care.
4. Testamentary Trust Will: A will that creates a trust to manage and distribute assets.

REQUIREMENTS FOR A VALID WILL

1. Signature: The will must be signed by the testator (the person making the will).
2. Witnesses: The will must be witnessed by two or more individuals, who must sign the will in the presence of the testator.
3. Mental Capacity: The testator must have the mental capacity to make a will.
4. Free from Undue Influence: The testator must not be under undue influence or coercion when making the will.

PROCEDURE FOR MAKING A WILL

Step 1: Determine Your Assets

1. Make a list: Create a list of all your assets, including:

    – Real estate properties

    – Bank accounts

    – Investments

    – Personal belongings

    – Business interests

2. Value your assets: Estimate the value of each asset to help you decide how to distribute them.

Step 2: Decide on Beneficiaries

1. Choose beneficiaries: Decide who will inherit your assets, such as:

    – Family members

    – Friends

    – Charities

2. Consider guardianship: If you have minor children, choose a guardian to care for them.

Step 3: Choose an Executor

1. Select an executor: Choose someone trustworthy to manage your estate, such as:

    – Family member

    – Friend

    – Professional executor

2. Consider alternative executors: Choose alternative executors in case your first choice is unable to act.

Step 4: Prepare the Will

1. Use a will template or consult a lawyer: Use a will template or consult a lawyer to ensure your will is valid and meets your needs.
2. Include necessary clauses: Include clauses that:

    – Name your executor

    – Appoint guardians for minor children

    – Distribute your assets

    – Address any specific wishes or instructions

Step 5: Sign and Witness the Will

1. Sign the will: Sign the will in the presence of two witnesses.
2. Witnesses sign the will: The witnesses must sign the will, confirming they saw you sign it.

Step 6: Store the Will Safely

1. Store the will securely: Keep the original will in a safe and accessible location, such as:

    – A fireproof safe

    – A safe deposit box

    – With your lawyer

2. Inform your executor: Inform your executor about the location of the will.

Step 7: Review and Update the Will

1. Review the will regularly: Review your will every 5-10 years or when your circumstances change.
2. Update the will: Update your will to reflect any changes in your assets, beneficiaries, or executor.

PERSONS COMPETENT TO MAKE A WILL

The following persons are competent to make a will:

1. Any person of sound mind: Any person who is of sound mind and has attained the age of majority (18 years) can make a will.
2. Any person who is not a minor: A person who has attained the age of majority can make a will, even if they are not of sound mind at the time of making the will, as long as they were of sound mind when they made the will.
3. Any person who is not disqualified: A person who is not disqualified by law can make a will.

PERSONS DISQUALIFIED FROM MAKING A WILL

The following persons are disqualified from making a will:

1. Minors: A person who has not attained the age of majority (18 years) cannot make a will.
2. Persons of unsound mind: A person who is of unsound mind and is incapable of understanding the nature of their actions cannot make a will.
3. Persons disqualified by law: A person who is disqualified by law, such as a person who has been declared insolvent or a person who has been convicted of a crime, cannot make a will.

REQUIREMENTS FOR EXECUTION

1. Signature: The testator must sign the will in the presence of two witnesses.
2. Witnesses: The two witnesses must sign the will in the presence of the testator.
3. Attestation: The witnesses must attest the will by signing it.

CONDITIONS FOR WITNESSES

1. Mental capacity: The witnesses must be of sound mind.
2. No interest: The witnesses must not have any interest in the will.
3. No beneficiary: The witnesses must not be beneficiaries under the will.

CONCLUSION

A will is a vital document that ensures one’s wishes are respected and their estate is managed according to their desires. It is essential to have a valid will to avoid family disputes, ensure asset distribution, and appoint executors and guardians.

Article by – Akhila Bolla & Kiran Mange