Things that you need to know for drafting a WILL

Life is uncertain and every human grows old with time along with that the uncertainty of life increases and thus one always have a fear of loosing his/her (wherever referred as he/she it includes all gender) assets in hands of a wrong person it is always better to be safe than sorry. What one need to know for drafting a WILL is that he don’t need to spend a huge amount on lawyer’s fees, until it is complicated, otherwise a self drafted WILL as precautionary step can save lot of money of your family members after you. A WILL is nothing but a legal declaration of intention of a testator with respect to his property which he desires to be carried into effect after his death. This article focuses on mainly unprivileged WILL, where a testator (person making WILL) not being a soldier (including an airman and mariner at sea) employed in an expedition or engaged in actual warfare.

 

So first thing to keep in mind is that a WILL bequeathing of self acquired property can only be made by a person who is above 18 years of age and is of sound mind, a WILL should be signed (marked with thumb impression in case of illiterate) by the testator in presence of two or more witnesses who have seen the testator signing such WILL. A WILL is an instrument whose registration as per Section 18 (e) of Registration Act, 1908 is optional, therefore even a simple typed/handwritten paper describing the last WILL of a individual having sign/thumb impression of testator with two or more witnesses can be construed as WILL of a person but it is often seen that such instruments are often challenged by any heir or any third party having vested interest and thus such properties become a disputed property. Ideally, a non-disputed WILL if submitted to the Court having appropriate jurisdiction, then a Probate (copy of WILL certified under the seal of Court) shall be granted by the competent Court which shall be useful for legal heirs to claim the properties of the testator. In case if a person dies intestate (where there is no WILL) then under such circumstances the assets of deceased (person who have died) are distributed according to the applicable personal laws, the legal heirs will have to obtain a succession certificate from the competent Court to claim such asset of deceased when died intestate.

Therefore in my personal view if one is concerned about his deteriorating health condition or is concerned of any life uncertainty then he should execute a WILL for a better and smooth transfer of assets. Further, in my opinion one should get a WILL registered as well to avoid any ambiguities and disputes between their legal heirs as an unregistered WILL can be challenged and can be contested on the ground of being obtained with undue influence, coercion, fraud, importunity or on ground of intoxication or unsound mind. Though a WILL can be altered or revoked by the testator himself, one should avoid executing multiple WILL or alteration in WILL as the last executed WILL may be considered as final WILL. As far as possible a WILL should be made by a personal individually and not jointly with a spouse or any other partner unless such partner is also the equal owner of all assets that one holds, otherwise the drafting of such WILL needs lot of drafting skills which ideally can be made only under legal advice.

 

One should then ascertain that what he wish to bequeath, bifurcate that all assets into two categories tangible and intangible assets then bifurcate tangible assets further into category of movable and immovable assets. So these includes your two-wheeler(s), four-wheeler(s), plant and machinery, gold and jewellery, household items, , residential house and/or commercial property, factory, shares, debentures, fixed deposits, lockers etc, one should make sure that even non tangible assets such as goodwill, intellectual property etc should also be specified. If one feels that any part of his asset is to be sold to set off any partial or full liabilities then one may better specify that in the same WILL. If one feels that it is not necessary then he may better take a legal opinion before coming to such conclusion.

 

Now next is that one has to ascertain the family members to whom he wish to convey such asset and in what proportion and whom he do not wish to convey. One should take care that specifying precise name and relationship of the testator shall be always be better to avoid ambiguities. It is also important one understands that in case if he wishes he can also put a condition to such a WILL for protecting the right of others, e.g. (1) A can bequest his property to his son C with a condition that he shall ever take care of his mother B with all medical and daily expenses (2) A can bequest his property to his elder daughter B with a condition that she will marry a boy named X before 28years of age; these are examples only to specify few conditions that could be specified in the WILL which generally people tend to either forget or avoid and consequences of the same are not so good sometime. A person, in case if he do not have legal heir, can bequest his asset to a trust with a condition to take care of the asset and to maintain for any specific purposes. Thus, though a WILL involves lot of intricacies one can draft it on their own with reasonable legal acumen however getting a right opinion and advice can save one from lot of trouble.

 

Model Specimen of WILL is given only for reference purpose