What are the things which I should keep in mind while drafting a will?
Dated: 2024-05-07 16:17:34
I will be consulting a lawyer to draft my will, but to be on the safer side, I would like to know what are the basic things I should include in my will and mistakes which I should avoid.
Thank you!
Answers by Lawyers
Introduction
A will is a legal document by which a person decides how his property will be distributed after his death. It helps one ensure that the property is devolved as per his wish and the right heirs receive their fare shares. The law regarding will in India is the Indian Succession Act, 1925. This law is applicable to Hindu, Jain, Buddhist or Sikh. Mohammedan are governed by their Muslim personal law and hence have to follow the principles of the same.
If a person dies without writing a will, then the property is devolved according to the personal laws of the respective religion.
Drafting a will
It is not necessary to have a lawyer draft your will, though a lawyer may provide you with a better drafting and also tell you what difficulties you might face in the future.
- Enter all personal details, including name, address, place and date correctly. A valid signature is the most important part of the will.
- The words used in the will should be to the point and provide a crystal clear meaning of what the testator (the person who is writing the will) intends to say. The words will be interpreted literally though they might give a strange meaning and the result following it. For e.g. words like money will be interpreted as cash and not as stocks, investments or shares.
It should be specifically mentioned in the will about the property which is being transferred. By specific it means the share each respective member will receive. Specifically mentioning , the bank account number, the locker number, or the mutual fund scheme or the share will cause less problems and will lead to crystal clear interpretation of will. Provide with all the details of the property and if possible also mention the date of purchase or any other relevant details resembling the uniqueness of the transaction.
- If the intention is not clear then the arm chair doctrine is used by the court. This means that the court will place itself in place of the testator and take into consideration the surrounding circumstances, status, family relations and other relevant things which can construe a different meaning of the will. The whole will be looked into while construing the meaning, and not only just the words which are not clear.
- Only the property which is owned can be willed away. If a person is yet to get his share according to Hindu succession laws, but hasn’t received them yet, then he cannot will them away, until they are transferred to him or are in his/her possession.
- Though registration of a will is not compulsory, it is suggested and advised to register the will at the office of registrar. The registered will acts as very strong evidence, and hence can’t be challenged on pity or baseless grounds by the other. The registered will has its own authentic value in the court as it cannot be tampered with or stolen. Changes made to a will after is it registered are also deemed to be a part of the will (codicil) and the unregistered changes are void in court of law and hence aren’t accepted as evidence.
Moreover, when a will is registered it is in safe custody of the registrar and no one without the express consent of the testator, in writing, can access it.
Common grounds for challenging a will are forged signature, unsoundness, coercion, etc. Registration minimizes all these grounds for challenge as all these actions take in front of the registrar.
- It is mandatory that, two witness sign the will, though there is no such requirement for the presence of both the witness together or any form of attestation required.
- If a person intends to transfer the property to a minor, then a guardian must be appointed for the safeguard of the property. The property will be transferred to the minor chid when he/she attains the age of majority, i.e. 18 years.
- A part of the property can be willed away as your health insurance and mention the type of treatment he would like to take in case he/she suffers any kind of disability or illness in the future.
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