Drafting of Will


Overview

A will is a legal document that communicates how one’s assets are distributed among those close to that person after his/her death. 

Will is a document that defines how the assets will be handled or manage after the death of a person (Testator) who create will. Will is a testamentary instrument that comes into effect only after the death of the testator, if any person dies without writing a will then it is commonly known as if he or she died intestate. Drafting of will means the written declaration of a person regards the distribution of his/her assets after death. There is no such specific format to draft or write a will, will can be written simply on A4 paper but to be effective, it needs to be properly signed and attested. A smart draft will ensure that those whom you wish to benefit actually do benefit after death. While drafting a will language can be simple but the intention of the testator should be very clear.

The document becomes legally enforceable only if it is written and signed by the testator and at least two witnesses who have seen the testator signing the will. Registration of will is not mandatory as per the provision of the Indian Succession Act, 1925. But once a will is registered it is placed in the safe custody of registrar and cannot be changed or tampered Though it is not compulsory to register a will, the testator may choose to register it with the Registrar or Sub-Registrar of the district court under whose jurisdiction the property lies. It is always advisable to register a will as registering gives it a legal backing in case of any disputes which may arise in the future, such as disputes regarding the validity of the will. The testator can also choose to keep the will in safe custody. The will can be withdrawn at any time. 

For the registration of will, the first step is that you find the best lawyer for drafting your will, which will show the clear intention of the testator. An experienced lawyer or attorney will draft it correct and clear, and registration fee to be paid to the nearest Sub-Registrar office. That drafted Will should be signed by the testator and two witnesses. This registration process will take a maximum of 7 to 10 working days.

Benefits

  • Decide how your estate will be distributed.
  • You decide who will take care of your minor children.
  • Avoid lengthy probate process.
  • Minimize estate taxes.
  • Decide who will wind up the affairs of the estate.
  • Can disinherit individuals who would otherwise stand to inherit.
  • Make gifts and donations.
  • Change of mind if life circumstances change.

Who Can Make a Will

Section 59 of the Indian Succession Act, 1925 mentions the persons capable of making a will:

  • Any person who thinks of bequeathing (giving their property) to the person who is near and dear to them and who are looking after their comforts.
  • A person who is not a minor (above 18 years of age in India) are capable of making a will.
  • A person of sound mind.

Points of Inclusion in the Will

  • Details of the testator- the name address, age, and other details which shall help in identifying who is making the will and when was it drawn.
  • Declaration – important to mention that the testator is of sound mind and free from any coercion while drawing the will.
  • Details of the beneficiary – name address and relationship of the person to whom the assets are to be divided will be benefiting out of the will.
  • The executor of the will – name address and the relation of the appointed executor who would ensure that the will is to be carried out according to the directions of the testator.
  • Details of property and assets – details of the assets and properties to be divided
  • Division of share – share that each beneficiary has on the property or the specifics of who shall get what is to be listed in full detail
  • Specific Directions – specific directions for execution of the will
  • Witness – the testator should put his signature in the presence of 2 witnesses.
  • Signature – after the last statement, the testator to sign the will along with the date. 

Procedure

Procedure for Drafting of Will

Frequently Asked Questions

Why should I make a Will?

To prevent disputes amongst the legal heirs and distribute your assets as per your wishes/ choices, you should always get a Will drafted.  A well-drafted Will can provide for the distribution of assets in a specified proportion among your spouse, children, parents, friends, and associates.

Who is the executor of Will?

The executor of a Will is the person who will overview the entire process appoint to ensure that the directions in the Will are carried out as per your wishes. An executor can be any person who is not a beneficiary in the Will, or any trusted person such as a family friend, a lawyer, or a chartered accountant.

What happens if I don’t appoint an Executor?

The court will appoint an administrator to carry out the responsibilities of the executor.

Can I change my Will after registration?

As a testator (owner of the Will), you can change the Will at any time you deem fit. Once you have changed the Will or made a new Will, all preceding Wills are canceled automatically.

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