What is Will in Law?

A person’s “will” is a legal document or statement that they make throughout their lifetime to determine how they want their assets and properties to be distributed. The heirs and survivors of the deceased can inherit the property as the deceased desired by using a will as an instrument. 

In India, will facilitate the peaceful division of property among complicated family systems, preventing disagreements and the need for legal action. In India, wills are considered legal documents and are not subject to a rigid format. A handwritten document can be considered a will, or it can be written on plain paper without registration.

The Indian Succession Act, 1925, serves as the primary source of law pertaining to wills in India. The goal of this blog is to make it easy for you to comprehend the steps and needs involved in drafting a will by demythologizing the intricate facets of Indian will law.

Benefits of Creating a Will

Clarity in Distribution

A well-written will help prevent family disputes about the testator’s property, and in the event that one does occur, the recipient of the estate has a strong document on his side.

Choice of Beneficiaries 

The law of inheritance does not take into account whether the deceased wanted any family members to receive his property or not, or in what proportion but in case of a will, it allows the testator to distribute the property as he wants. 

Appointment of Guardians

A will can be used by parents to designate guardians for their minor children.

Tax Benefits

A will that is properly drafted can provide tax benefits. These days, it is a relatively common legal requirement for the transfer of stocks and shares, bank deposits, real estate, and company interests. A properly prepared and registered will guarantees that all legal requirements are fulfilled.

Essential Elements of a Legitimate Will

As established by the Indian Succession Act, 1925, an Indian will must contain the following key components:

1. A person must be at least eighteen years old and in good mental health in order to write a will. This prevents minors and others with mental impairments from creating a will.
2. A person cannot create a legal will if they are unable to make a sound decision or are in a state of intoxication or disease that prevents them from understanding the repercussions of their actions.
3. Any portion of a will that was drafted without free permission or that was coerced or threatened into being made is void and unenforceable by law.
4. Listing Assets- Everyone will need to include a list of all assets, including the testator’s property, money, stocks, bonds, and other financial holdings. To avoid omitting any important information, this should be done with extreme care and caution.
5. Division of Assets- After the individual’s assets have been stated, the will should include a precise and unambiguous method for allocating the assets so that nothing is overlooked and there is no needless disagreement when the will is put into effect. It is required to designate a custodian for any assets that have been handed to a minor.
6. Signing the will and adding witnesses- Once the will has been drafted and filled out, it must be signed, with the date noted. Additionally, you must have two witnesses attest it; they only need to see that you signed the will in front of them. In legal terms, witnesses give the will legitimacy, hence they are a necessary step.

Significance of a Valid Will

It is impossible to overstate the significance of drafting a legitimate will. In addition to making estate planning more effective and efficient, a will also helps the deceased’s family members avoid needless arguments and legal action. Additionally, it serves to protect the rights of the deceased’s legal heirs from any relatives or claimants who might emerge after the death to assert their claim.

Making a distinction between the nominee and the beneficiary is the primary function of a will. The beneficiary is the person who eventually receives the property, whereas a nominee is the person who owns the property prior to its final distribution in accordance with the terms of the will. With the aid of a will, the testator can effectively designate a candidate for the equitable distribution of assets in accordance with the terms of the will.

One of the major benefits of a will is that it helps to plan out funds and guardians for minor children or dependants. In the event of a parent’s untimely death, the courts have the exclusive authority to distribute assets and choose guardians in the absence of a will. However, parents or a single parent might designate guardians and set aside money for their children’s education and future by utilizing a will.

A will aid in designating executors to oversee the deceased’s social media presence after their passing and control the money received from it, as digital presence is now a significant source of income for social media celebrities.

Problems Faced in Absence of a Will

• In the absence of a legitimate will, the deceased’s family may be subject to unwelcome legal exposure in the form of disputes about how to divide their assets.
• The likelihood of distant family members or creditors stealing the deceased’s assets is very high.
• Family members are frequently unaware of the deceased’s whole estate, which prevents them from using it after his passing.
• If someone hasn’t been assigned to handle the deceased’s social media profile, there is a chance that their identity will be stolen.

Legal Structure of Indian Succession Act 1925

The main law pertaining to wills in India is the Indian Succession Act, 1925. With the exception of Muslims, who are subject to their own laws, it is applicable to all religions. Among the Act’s important sections are:

• Section 59: Individuals with the capacity to make wills.
• Section 63: Unprivileged will execution.
• Section 68: Document execution proof that must be attested by legislation.

Types of Wills in India

• Privileged Wills: During active duty, soldiers, pilots, or mariners may make these. The formalities of these wills are less strict.
• Unprivileged Wills: Those created by someone else. These wills have to adhere to more restrictive procedures.

How to write a Will?

• List Your Assets: Compile a thorough inventory of all your resources, such as real estate, bank accounts, investments, and personal items.
• Decide Who Will Benefit: Select the heir to your property. You can give your assets to charities, friends, or relatives.
• Select an Executor: Assign a reliable someone to carry out your wishes. Your intentions will be followed out, thanks to the executor.
• Draft the Will: Clearly outline how your assets will be distributed in your will. You have the option of writing it yourself or getting legal assistance.
• Sign the Will: You must sign your will in front of two or more witnesses. As a testament to your signing, make sure the witnesses sign the will as well.
• Store the Will Safely: Make sure your executor or another trusted individual knows where your will is kept.

Mistakes while making a Will

When preparing a will, testators or their attorneys often make a number of mistakes, such as making use of jargon or complicated legal terms that are difficult for the executors and beneficiaries to understand. In order to prevent inconsistencies during execution, it is recommended that will be drafted in basic, uncomplicated language.

Second, wills are frequently out of date. This renders the will outdated and vulnerable to legal issues as newly acquired or sold assets are still included in it. It is more common for people to transfer their tenancy rights, even if this is illegal. This makes it challenging to carry out.

What is required for Registration?

It is preferable for a will to be registered, even though it is not necessary and can be written on plain paper as well. The Registrar of Assurances in the testator’s residence is where the registration can be completed. The executor or legatee may register the will after the testator’s death, or the testator may do so while they are still alive. 

It is also necessary to register any subsequent revisions. Registering the will guarantees that it cannot be altered, establishes its authenticity, deflects accusations that it was made under duress, and may eliminate the need for probate in order to obtain leasehold properties transformed.                       

How is a Will Enforced?

The executor has the authority to enforce a will. In accordance with the Will, he is the custodian of the beneficiaries’ rights. The Indian Succession Act stipulates that the sole option to enforce rights under a will is through a probate. 

Hindus in India are exempt from this prohibition, though, unless they own real estate in Chennai, Mumbai, or Kolkata. Probate refers to a court of appropriate jurisdiction certifying the will.           

Conclusion                                                                                            

To guarantee that your assets are allocated in accordance with your desires and that your loved ones are cared for after your passing, registering a will is an essential first step. Despite its seeming complexity, the procedure can be made simpler by comprehending the main tenets of Indian will law. 

You can make a legitimate will that reflects your genuine intentions and gives you and your family peace of mind by adhering to the rules and consulting with knowledgeable attorneys who handle property problems.

Frequently Asked Questions on Will in Law

Q1. What makes a will invalid?

Ans1. When someone drafts a will who is unable to do so because of insanity, disease, or advanced age, the will is invalid. Additionally, it loses legal significance if it is drafted under duress, fraud, or force.

Q2. What are the most important factors of a will?

Ans2. The most important factors of a will are the division of assets and the appointment of executors for the will.

Q3. What is “Will” meaning in law? 

Ans3. A last will and testament, often known as a will, is a legal document that specifies how you want your assets and property to be divided after your passing.

Q4. How many types of will are there?

Ans4. The Indian Succession Act, 1925, recognizes 2 types of will in India, privileged and unprivileged.

Q5. Is “Will” valid without registration?

Ans5. A will does not have to be registered in India; an unregistered will is also regarded as lawful. However, it is advised that you do so since it makes the will seem more genuine.

Q6. What is “Will Deed”?

Ans6. A will deed is a legal document that, upon the testator’s (the person who creates the will) death, grants ownership of assets and personal property to the heirs.

Q7. Who are the legal heirs of deceased in India?

Ans7. The individuals who have the legal right to inherit a deceased person’s assets and property are known as legal heirs. They may be the deceased’s parents, spouse, kids, or grandkids. 

Q8. What is “Property Will” in India?

Ans8. In India, a “property will” is a legal instrument in which a person, referred to as the “testator,” specifies how their assets and property are to be divided among specified beneficiaries upon their passing.

Q9. Can I make a will without a lawyer in India?

Ans9. Yes, you can create a will in India without a lawyer. Nonetheless, it is advisable to obtain legal counsel to guarantee that the will conforms with all applicable laws. 

Q10. Can property be transferred without will?

Ans10. In the absence of a testament, the laws of ‘intestate succession’ govern the transfer of property.