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How to Make a WILL in India - What is WILL

August 25, 2024

How to Make a WILL in India



 

in India Will is a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death. It includes codicil and every writing making a voluntary posthumous disposition of property.

It is a testamentary instrument by which a person makes disposition of his property, to take effect after his death, and which, its own  nature, is ambulatory and revocable during his life.

Thus, a WILL can be changed by the executant as and when he so likes. It is a secret and confidential document which the executant is never ordered to produce.

 

There are two essential characteristics of a Will:—



  1. It must be intended to come into effect after the death of the testator; and
  2. It must be revocable by the testator at any time.

 

Although Wills are usually made for disposing property, they can also be made for appointing executors, for creating trusts and for appointing testamentary guardians of minor children. In a case, the Andhra Pradesh High Court has held that contents of the Will must indicate that it is intended to come into effect after death of testator and that it is revocable at any time prior to his death and a document cannot be treated as a Will by a mere reading of the heading of it; Mandakini Naik v. G.K. Naik, 2004 (3) ALT 829 (AP HC).



A gift to take effect during the life time of the donor is a deed of settlement and not a WILL. Section 63 of the Indian Succession Act 1925 provides that a Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by WILL.

 

When a person dies without having made a Will, he is said to have died intestate. His property is then inherited by his legal heirs in accordance with the law of inheritance applicable to them. It must be noted here that legal heirs generally include close family members such as one’s spouse, children, parents,  brothers and sisters.

 

Importance  of a will

 

However the importance of a Will was realised by many only after two very high profile was among some of the richest families in the country the Ambani’s and the birlas. The most was the case with the absence of a will. The second was the case with the will  bequeathing over rupees 5,000 crore to the third person (a chartered accountant).



Nomination 

 

Some people think that by nominating a person in a life insurance policy or in a bank account they are passing on their wealth unfortunately this is not show a nominee is only a person who is authorised to receive the money from a bank/ Life Insurance Company/ A mutual fund/ any other source. The presence of a nominee helps the financial institution to relieve themselves of their duties.  The nominee is then suppose to hand it over to the rightful legal heir/s of the wealth.

 

The person mentioned in the Will to receive the monies from a life insurance policy supersede the nominee. However, the nominee can be the beneficiary of the Will and/ or be a legal heir too.

Where there is a Will there is a way

 

A written Will, take care of most of the problems related to passing on wealth. It  is a wish list of the owner of any wealth (real estate, shares, painting  Goodwill, patents, copyrights, pets – almost anything of value) on how/she wants it to be split up among his/her family members, relatives, employees, charity, or anyone else after his/her passing.



Any Will has to have the option to be changed later. An unchangeable Will in fact is a void Will. This is because at any point  of time the owner of the wealth can have a change of mind and will need to change his/her Will.

 

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