Today we live in a world of uncertainty where anything could be happen to anyone at any time. Therefore, Will planning is a step towards passing on inheritance to make easy life for dear ones after the death of the testator. It is a process for devolving of the assets of the testator after his/her death in advance. It results in easy division of the assets among the family member according to the wish of the testator. If the head of the family dies without a Will then the heirs may have to face difficulties such as to access the assets which is a difficult task to complete. Such circumstances may results in confusion among the heirs and in worst case legal disputes among the family members as to equal division of the assets.
What is a Will?
A will is a legal document which clearly demarks out the wishes of the testator for the distribution of his/her assets after his death. A Will has to be in written form. As in India there is no authenticity of an oral/ verbal Will.
Types of Will-
- Privileged Will-Wills made by those in active services like a soldier, airman or mariner is known as Privileged Wills. Such wills are usually conveyed in word of mouth or in writing by the concerned person. The following are the conditions applicable for a valid privileged will:
- The Testator has to write the whole Will by his/her hand only.
- If a Will is written by some other person then the Testator should sign that part of the Will which is written by the other person. However, in such case, there is no requirement for attestation.
- If a Will is wholly or partially written by other person and is not signed by the Testator then it must be proved that it was written according to the testator’s direction.
- In case if partly completed Will justified reason must be given and it should not indicate any abandonment of intentions to create a will.
- If a soldier or airman or mariner has given written or oral directions for his/her Will but has died before it is executed then such Will is consider to be valid one.
- Unprivileged Will- A Will which is not written by a soldier employed in an expedition or engaged in actual warfare or a mariner at sea is known as an Unprivileged Will.
- Contingent Will- A Will which will take effect only after the completion of certain conditions is known as Contingent Will. This will only be valid in the event of the happening of some conditions.
- Joint Will-A Will which is executed by two or more persons is known as Joint Will. If a Joint Will specified to take effect after the death of both persons then it cannot be enforceable during the life time of those persons.
- Concurrent Will– Concurrent Will is written by one person, where two or more Wills are provided for instructions to distribute the property for convenience. For instance, one Will could deal with the disposal of all immovable property whereas another Will deals with the disposal of all movable property.
Who is a Testator?
A person who is a major can write the will for the distribution of his/her assets among the legal heirs after his/her death is known as a“Testator”.
What assets can bebequeathed by Will?
Assets such as self-acquired property, dwelling place, land, money, jewellery, royalty, earnings from fixed deposits, land obtained through a lease deed if the deed has not expired can be bequeathed by Will.
Registration of a Will Deed-
According to the Section 18 of the Registration Act 1908, the registration of a will deed is not mandatory. It is the wish of the Testator regarding his/her will deed whether to register or not. However if the Testator wants to register his/her will deed he/she can do so by visiting the nearest office of the Sub- Registrar.A registered will deed is a valid and genuine document and no one can object it later on.
Essential Ingredients for a Valid Will Deed-
- Clarity- The Will must have clear details such as name, age, address, relationship of the beneficiary, details of the assets regarding to the wish of testator which property he/she want to give to which beneficiaries.
- No Ambiguity-The words of the Will must not be confusing, vague or meaningless. The clauses of a Will should be easy to interpret. Otherwise, it can make the Will void with respect to that particular part which provides different interpretation.
- No Handwritten text in a printed Will-A printed Will must be clear. Writing with hand text on a printed will should not be done as to maintain the authenticity of the Will. Writing and placing the signature below it reduce the genuineness of Will as any text below the signature is treated as not a part of the Will and will be discarded.
- Handwritten Will- A handwritten Will is a valid Will. But it should be done very carefully as a little mistake can make the Will void. Different handwriting and inks should never be used in a same document of a Will.
- Authenticity- The Testator should sign the Will just below the last sentence as to avoid further addition in between. As any text written below the signature will be taken as a void part.
Documents required for Registration of Will Deed-
The following are the documents required for registration of a Will Deed-
- An originally signed Will.
- Two passport size photographs of the Testator.
- Address proof of the Testator.
- A mental fitness certificate of the Testator from a legally authorized authority.
- Two witnesses with their two passport size photographs.
- Pan card of Testator as well as of the two witnesses.
Procedure for Will Registration-
- Step 1: Draft a Will with the advice of an expert and take the appointment for the registration in the office of Sub- registrar according to the jurisdiction of the residence of the Testator.
- Step 2: Testator must be present personally at the Sub-registrar’s office on the date fixed for appointment along with two witnesses.
In case where Testator is not physically able to go to the office of the Sub-registrar not even with the help of wheel chair then Testator may request the Sub- registrar prior with a valid certificate of his/her disablement to visit his/her residence for registering a Will deed.
- Step 3: The Testator and the two witnesses have to sign the document in front of the Sub-registrar.
- Step 4: The Sub- registrar attest the document after ascertaining the identity of the Testator and the two witnesses.
- Step 5: After the registration of Will deed the original document is to be keep in the safe custody of the Sub-registrar for future reference. The Testator can get a copy of original Will deed after duely certified with the signature of Sub-registrar.
Advantages of Registration of a Will
- A registered Will cannot be tampered, destroyed, lost or stolen.
- A registered Will can be kept in secularly in the custody of the Registrar.
- A registered Will cannot be access or examine by anyone without the written consent of the Testator until his/her death.
How to amend a registered Will?
Codicil- A registered Will can be amended in case anyone needs to add, delete, substitute or modify any of the clauses or any details in the Will. It cannot be done directly on the registered Will document since it becomes invalid. Therefore, a codicil document has to be prepared either on plain paper or stamp paper. The amendments should be mentioned in clear details. Signature of the Testator must be added below the last line without leaving any space between the signature and the last line. It has to be attested by two witnesses and later on codicil attached to the Will.
Who can get access to a Registered Will?
- The person who has made the Will can get a copy from the Sub-registrar’s office.
- If any other person wants to access or inspect a Will he/she can do so with a prior written consent of the Testator.
- After the death of Testator, his/her family member or the executer so appointed can get a copy of Will after verification of their identity.
Whether a Will Deed is a conclusive document?
No, a Will is not a conclusive document. It can be challenged. A registered Will is usually accepted by the courts unless contrary is proved by the challenging party. However, unregistered Will has to be proved for its authenticity by the party claiming it to be original. Any person can challenge the authenticity of a Will as long as such person can prove before the Court any fraud, tempering with the document.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali