Mukesh Patel.in
practical tax & investment planning online
international tax expert / columnist / author / speaker

YOUR WILL IS SIMPLE, BUT SO IMPORTANT!

Execution of Your Will should figure

on the top of Your New Year Resolutions!

The importance of executing a Will has yet not been appreciated to its fullest extent in the Indian society. It is, therefore, not surprising to come across several cases where in pursuance to the death of an individual, there are several family disputes and practical problems in the absence of the Will by the deceased. The execution of a Will is very simple and at the same time non-execution of the same can create several difficulties.

WHAT HAPPENS IN ABSENCE OF A WILL?

The general conception prevailing in the minds of many is that on the death of a male Hindu, his assets are required to be distributed only between his widowed wife and sons. However, as per the provisions of law, both married and unmarried daughters are entitled to receive equal shares in the same proportion as widow and sons.

Where the deceased individual has not executed a Will outlining the actual distribution of his properties amongst the legal heirs, this can give rise to complications. Moreover, where the legal heirs become entitled to various immovable and movable properties, in the absence of a Will, passing of a legal title to them also becomes difficult, since such legal heirs would have to obtain a succession certificate from the Civil Court, the procedure for which is both time consuming and expensive.

BASIC CONCEPTS REGARDING A WILL

Any adult individual having a sound mind can execute a Will in respect of his property and under the said Will he can bequeath his self acquired property to any person or persons of his choice. The only exception in this regard is under the provisions of Mohammedan Law under which a Muslim can bequeath only one third of his property under a Will. Under the provisions of Hindu Law, a Hindu male can, apart from his self acquired property, also make a Will in respect of his share in Hindu Undivided Family property.

It should be kept in mind that the implementation of the distribution of the property under the Will takes place after the death of the individual and accordingly during his life time he can fully enjoy the same. Moreover, an individual can change his Will any number of times during his life time. When a new Will is made, the old Will is deemed to have been automatically cancelled. Upon death of a person the effective Will is the last Will made by him.

When an individual has made a Will before and instead of making a totally fresh Will, if he wants to make some additions or alterations, this can be made by a supplementary or additional Will which is known as ‘Codicil.’ Where Codicil is made, the Will and the Codicil are to be considered as joint and complimentary to each other.

WHILE DRAFTING A WILL

The following points need to be borne in mind by an individual who is drafting his Will:

  • A Will can be executed on simple paper and it is not necessary to have any stamp paper or legal paper for the same.

  • No legal jargon is required to prepare a Will. In fact it is desirable that the clear intention of the testator can be understood in clear and simple language.

  • The most important thing in connection with the execution of a Will is attestation of the Will by two witnesses who are present at the time of signature of the testator and who sign as witnesses to the Will. It would be advisable if a person who is beneficiary under the Will does not sign as a witness.

  • The testator should preferably sign each page of the Will and if there are any corrections in the same he should initial them in the margin. If there are too many corrections, it would be better to prepare a new Will.

  • A Will is not required to be compulsorily registered. However, where it is apprehended that the genuineness of the Will is likely to be challenged, it may be advisable to consider either notarization of the Will before a Notary Public or registration of the same before the Registrar. In such circumstances, it may also be advisable to have the individual’s family Doctor sign the Will certifying that he or she is of sound physical and mental health.

  • Since the implementation of the Will is to be effective upon the death of the individual, it would be necessary to appoint one or more executors under the Will. The testator should try to appoint trusted persons as executors and clearly mention their names under the Will authorizing them to act as executors. There is no legal bar against appointing a beneficiary under a Will as an executor of the same. It is not necessary to have the executors sign the Will.

  • As mentioned hereinabove, if some points are required to be settled or corrected in the original Will, a supplementary document of ‘Codicil’ can be prepared.

  • Keep the original Will or Codicil at a safe place and give necessary information in regard to the same to close family members or friends. It may also be advisable to give copies of the same to the executors for their reference.

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