LIfe is uncertain is a very well-established fact and the recent pandemic has further proved it correct. People in the prime of their age have succumbed to this infection due to multiple complications and families have also lost their sole breadwinners. Given this scenario, there have been many families that are left grappling with the harsh reality of family disputes over the property of the deceased or children that are orphaned and have no clear direction about their guardians or their financial security.
In such situations, a light at the end of the dark tunnel is a well-drafted and valid will of the deceased person that can provide clear directions regarding the estate of the deceased as well as ensure the financial security of their family, especially the children.
Therefore, let us discuss the meaning of a will and the importance of having one as per the prevailing rules in our country.
What is the meaning of a will?
Before going any further, let us first understand what is a will as per Indian legislation and how to draft it. A will is defined as per provisions of section 2(h) of the Indian Succession Act, 1952. As per this section, a will is a legal document drafted by any person that contains directions relating to the distribution of his/her assets and possessions as well as details of guardianship for the dependents of the family. The last will and testament will be considered to be the final wishes of a person regarding their possessions (whether to be distributed among family and/or outsiders, donated to a charity, etc.) as well as his directions for tasks to be performed after his/her death.
The key ingredients or pointers that are required to make a clear and valid will are,
- The first and foremost is a testator who is the person making the will. The will needs to include their name, age, address, a clear intention of making the will, and a detailed list of their assets as well as details regarding guardianship of their dependents. The person needs to be of sound mind at the time of making the will as well as should be free of any coercion or influence for its validity.
- Secondly, there needs to be an Executor of the will. He is the person (usually a lawyer) who is responsible for the execution of the will after the death of the testator.
- The will needs to be duly dated and signed to ensure that the lastest will at the time of the death of the testator will be executed upon his/her death.
- Most importantly a will should contain the details of the beneficiaries with utmost clarity to avoid any confusion or ambiguity regarding the execution of the will.
- The will has to be signed in the presence of at least 2 witnesses for it to be valid. An important note in this regard is that such witnesses cannot be beneficiaries of the will for it to be true and have no scope to be contested. An independent lawyer and a doctor are ideally preferred as they can vouch for the free will of the testator and him/her being of sound mind.
Does a will need to be registered?
In India, a will can be drafted on a piece of paper that may or may not be a stamp paper and is still valid provided it has all the essentials of a valid will. However, in order to avoid any disputes or contesting of the will it is better that it is registered. For registration, the testator and the executor have to visit the sub-registrar office along with two witnesses. The jurisdiction of every sub-registrar office is different hence, it is important to first know the correct sub-registrar office applicable for the testator for its due validity.
Why is it important to make a will?
Having a valid will is not too common in India. However, it is always beneficial to get one drafted in time and registered to ensure that after one’s death there are no hassles for their next of kin. The importance of having a valid will is highlighted in the points given below.
- A sure way to protect one’s family
By drafting and registering a will, a person can have peace of mind as their family will be protected after their demise. A will has a clear outlining of all the assets and their distribution pattern for all the family members as well as directions in case there are any minors in the family. This helps the family cope with the financial loss of their family member while dealing with the emotional one too.
- Avoid any legal disputes among survivors
It is often seen that the survivors of the deceased have disputes among them regarding their share and directions to use or dispose of the family property. With a definite and valid will in hand, all such disputes can be avoided as the last will and testament of the deceased will hold the highest value and legality relating to the discharge of the properties.
- Way to disinherit family members
The deceased can also use a valid and registered will as a tool to weed out family members and not give them any benefit of their estate. Such family members may contest the will if such will is not registered or if they prove that while drafting the will the testator was not of sound mind or was under coercion.
- Guidelines regarding guardians for children
Due to the pandemic, many children have lost both their parents and are left to fend for themselves. Under these bleak circumstances when the future of such children is in dark, a detailed will with guidelines regarding the guardians for the dependents can be a life saver. The deceased can set up a trust or a fund which can be supervised by the guardian and the education and financial future of the dependents can be secured.
- The family can have details of all the assets of the deceased
Most often it is observed in Indian families that the head of the family is the sole person with the knowledge of the family assets and investments. In such a scenario, a sudden demise of such a member can put the family in a disarray and they may not be aware of all the family fortune. A will can light the path for the family of the deceased and help them have all the details of the family assets and their valuation. This helps them in making sound financial decisions for the betterment of the whole family.
Conclusion
A will in India is not a popular concept as the majority of the people do not see the need for the same as well as think that it will only create complications for the family. On the contrary, having a will will secure the financial future of the family and save them from opportunistic individuals who may try to take advantage of their loss.
FAQs
Yes. A will can be altered multiple times by the testator provided he/she is of sound mind and not under any coercion. Also the alterations need to be duly dated and signed to validate them. If a will is heavily altered it is better to have a fresh new will to avoid any confusion. The latest valid will upon the death of the testator will be executed after their death
A will becomes legal evidence when it is duly registered at the applicable sub-registrar office.
here are two types of wills in India namely a privileged will and an unprivileged will. A privileged will can be oral or written and is specifically for a soldier or an officer who goes on line of duty. An unprivileged will is a will that is made by any other person and requires to be in the written form. It has to be duly dated and signed along with the minimum number of witnesses for it to be valid.
An unprivileged will requires at least 2 witnesses to be valid. Such witnesses cannot be the direct or indirect beneficiaries of the said will.
When the testator, i.e., the person making the will is not of sound mind or is under any influence or coercion, such will is not valid.
