Personal & Family

What Is a Will? – An Overview

A will is a legal document that plays a key role in the distribution of one’s assets in the event of their death. The person making a will is known as the testator. It is necessary to keep a will in place to prevent the property from being distributed through the process laid down by law. When one dies without making a will, the property is distributed through ‘intestate’ succession. The process of intestate succession varies from religion and personal law.

Thus, it is always advised to prepare a will in advance to ensure that the property is divided as per the wants and wishes of the deceased. Ideally, the will suggests the property being divided to the close relatives or friends of the deceased. Keeping a will in advance is a healthy practice, this is often overlooked as many people do not have a will or have outdated information in it. In India, it is not necessary to register a will but it is always advantageous to register it with the Sub-Registrar.

Essential Components of a Will

• Personal Details: This includes the name, fathers name, date of birth, and personal address of the deceased
• Details of assets: This is an account of the assets that need to be divided. This includes movable and immovable property owned by the deceased
• Details of beneficiaries: This includes the name of the people who will be getting the assets. The will must clarify each asset with the name and personal details of the beneficiary
• Signature: It has to be signed by the deceased
• Signature of witness: A will at the time of registration must be done in the presence of a minimum of two witnesses. The signature of those witnesses is also compulsorily added
• Executors Details: The executor is the person who will be implementing the will after the death. The name, address, and other personal details of the executor have to be included as well.

Can a Testator Change the Entire Will After Executing the Same?

A testator has the right to alter the entirety of the will whenever he chooses and in any way he sees fit. Any individual who has the legal capacity to do so may form a will; but, if that person lacks the capacity, the will is considered invalid and unenforceable.

Any will that was obtained through coercion, force, or undue influence is deemed invalid. A will that was written while under the influence of alcohol or while in a physically or mentally incapacitated state is deemed invalid. A person’s will may be carried out at any moment during their lifetime.

However, there is no limitation or restriction on the number of times a testator can make or modify a will. However, the only legitimate and enforceable Will is the one made by the testator just before his death. A will can be signed or sealed by the testator in the presence of two witnesses, who must also sign the document and attest to it.

If the Testator Only Wants to Make Few Changes in the Will, Is It Possible?

Yes, a clause to the will can be added if the testator only wants to make a few modifications and doesn’t want to alter the entire document. Similar to how the Will as a whole is carried out, so is the codicil.

It is important to note that, like a will, a codicil is reversible and can be changed at any moment. If the party’s heirs object, a citation must be issued, requesting their approval and the requirement that they appear in court. If no protest is made, the probate will be granted, and only a Will will then take effect and acquire legal validity.

What Points One Need To Consider While Drafting A Will?

• Extreme attention must be taken when writing
• They must express the testator’s desire in a indisputable manner and without any room for interpretation
• The will must not contain any word or linguistic conflicts
• No clauses should be at odds with one another or contradictory
• It is crucial that the will’s provisions be read consistently
• Making a will can be done at any time
• Any person who has significant assets can easily create a will and then alter it or add to it as per their wishes.

Can a Will Be Registered Even After the Death of a Testator?

A will that has previously been signed by both parties and witnessed might be recorded even after the testator has passed away. Before the sub-registrar office, claimants must provide an original copy of the testator’s will along with the testator’s death certificate, and witnesses must also be present. If the officer is happy with the documents and thinks they are accurate, a will may be registered. However, if the testator passes away, the officer can start the ‘will enquiry’ process.

Documents Required For Registration of Will

• A personal visit to the sub-office registrar’s with two passport-size photographs is required by the person making the will
• A doctor with an MD or MBBS degree certifying the testator’s mental fitness
• A genuine, signed will
• Two other witnesses, each bringing two photos, must be present
• A photograph of the testator who created the will
• Proof of address and identity of the two witnesses
• Documentation providing the will maker’s address
• A pan card showing the will-maker and the two witnesses.

Procedure of Registering a Will

• Step 1:As mentioned in the Registrations Act, registration of a will format is carried out at the Office of the Sub-Registrar of the State Government
• Step 2:Specified stamp duty is levied on every registration
• Step 3:After the will format is drafted, the testator, accompanied by the witness(es) visits the Registrar to carry out the official formalities
• Step 4:After execution, the registered will is kept in the safe custody of a lawyer or a banker. The registrars also have the authority to hold deposited wills
• Step 5:The testator or any individual authorised by him can deposit a sealed will to the registrar.

Advantages and Disadvantages of Will Registration

The benefits of having a registered will include the following:

• Will cannot be lost, damaged, destroyed, or stolen
• The registrar has will in his or her secure care
• Until the testator’s death, no one may access or examine the will without the testator’s express written consent
• It is possible to transfer leasehold property into the names of the legal heirs without a will if a registered will is uncontested.

Having a registered will has the following drawbacks:

• When compared to revocation of an unregistered will, revocation of a registered will is a laborious process
• Any new will that a person makes after revoking an existing one should likewise be recorded.

Who Can Get Access to the Registered Will?

Public admission to will inspection is not authorised. A copy of the Will may only be obtained from the Sub-office registrar’s by the maker of the will. The executor or a member of the deceased person’s family may obtain a copy of the will following proper identification verification.

Is It Mandatory to Get a Will Registered?

No one may execute a will that hasn’t been registered because the law does not support it. However, an unregistered will does not have the same level of legal sanctity as a registered will.

A will may be registered in the local sub- registrar’s office during the registration process in the presence of the testator and two witnesses. The witness should ideally be a person who can attest to the testator’s capacity to make the will. A person’s preferences may change over time based on the circumstance, and the will could need to be amended. The registration fee is fairly low, therefore one can easily change or update the will as often as required. You can pay to register for every new version.