Where there is a Will, there is a War.
I received numerous calls recently from a few of my friends, aged between 40-50 years, asking if they can make a Will. I told them, of course, they could. There was nothing stopping them from doing so. I made mine at 34. Given the global COVID-19 pandemic, even the relatively younger lot has been looking at succession planning and making and executing a Will. So here are a few important points to be kept in mind while drafting and executing your Will.
1. A Will is a legal document that contains the names of individuals who would receive property and possessions of a person after his/her death.
2. It can be executed by a person of sound mind and who is a major and has property/assets in his/her name.
3. A well-drafted Will goes a long way since it provides information of all the property and different assets left behind by deceased and details of who will inherit which specific asset and in what proportion.
4. It is significant to note that Will as a document can be changed at any point during a person’s lifetime. The previous Will can be modified or substituted or it can also be completely revoked.
5. It is not important that the Will should be registered meaning thereby, it is not compulsory to register it under law. It can also be executed on a plain paper, although it is advisable to register the same.
6. Registration of Will takes place at the concerned Sub-Registrar’s office.
7. A registered Will is a strong evidence and should contain the line saying that the same is being executed on his/her own free will and in sound state of mind.
8. The Will is required to be signed by two witnesses and by the executor of the Will. Since no stamp duty is to be paid on the Will, therefore, there is no requirement for stamp papers.
9. There is provision for the safe custody of Will as detailed in Indian Registration Act, 1908 whereby the Will can be kept in a sealed cover and super scribed with the name of the testator or his agent, may be deposited with the registrar in safe custody.
10. One can make Will as many times as possible, but only the last executed Will before the testator’s death, is enforceable.
11. Not having a Will in place, will be a big mistake and one is normally advised to execute their Will as soon as they hit 50 years or even earlier if they have assets which they would want to secure.
12. In the absence of a Will, the legal heirs of testator will be forced to incur expenses to acquire succession certificate in order for transfer of properties, investments, titles, assets etc. It is also important to understand that the nominee is only a caretaker of the assets and will have to pass these to the legal heirs.
13. Without a Will, the Succession Act as per your religion will decide as to who will inherit your assets.
14. It is best to draft Will on aid and advice of a lawyer, however, one can draft it on their own. It is pertinent that the details are mentioned precisely and all the details are present so that the same cannot be contested later on.
15. It is advisable to have a doctor and lawyer as a witness so that in the event the Will gets contested, the Doctor can testify about the soundness of mind and the Lawyer can testify regarding the legal advice rendered before executing a Will and that there was no undue influence while executing the Will.
16. Ensuring that the executor so appointed for the Will should be impartial and it is always better to have a third party administrator for a nominal sum.
17. It is always advised that any gifting of any asset should not take place when the person is still alive. It is seen that a lot of old people are vulnerable because once the property is in hands of children, there are chances of ill-treatment.
18. It is important to bear in mind that a Will, be it registered or not, can be revoked during lifetime of testator whereas a gift deed once executed is irrevocable.
19. It is always advised that provision should be made regarding terminal illness, disability, or coma, in the Will.
20. You can also write a living will, as per Supreme Court’s recent ruling. You can decide a particular line of treatment or its withdrawal.
Should there be any further queries, please feel free to write in at pallavi.pratap@pratapandcompany.com
PALLAVI PRATAP
She is Managing Partner of Pratap & Co. - a litigating law firm. She is an Advocate-on-Record in Supreme Court and practices in High Court and various Tribunals including NCLT, NCLAT, NCDRC, NGT, DRT.
Qualified MBA in Finance from La Trobe University, Melbourne, Australia and LL.B from Lucknow University, she brings with her more than a decade of experience in legal affairs .