Will-Facts, Myths & Mistakes

 

                                   Will- Facts, Myths, Mistakes

Will is an expression of Intent or wish of a person.  It is defined as “A legal declaration of the intention of the testator with respect to his property which he desires to be carried out after his death”. Wish can be expressed orally or in writing, whether registered or not. The document can be private or public. A letter written or a spoken word is a private document. To make it public document, it has to be brought to the notice of the world either by publishing or speaking in public or announcing in public or it should be a registered document so that it becomes a public document.

A document ha two important aspect   (i) legal and (ii) execution. A document may be legally right that is it conforms to all the rules laid down at that time it was spoken or written but it is on executable meaning it cannot be executed. It is possible that the document is executable but does not conform to the laws of the land. A will, therefore, has to conform to both these aspects that it is not only legally correct but is also executable.

A will is written while the person is alive and is in full senses, stable mind. It can be operational during his life time and such a will is called a living will or advance declaration and is operational as long as the person is alive and becomes null and void once he is dead. The other type of will is the one with which we are normally familiar and this is also written during his life time but becomes operational only after his death and deals with how his assets are to be divided or given out to his heirs or to any other person including a Hindu deity, a company, a corporation, a trust or to any individual.

A spoken will is a legally correct will but it may fail in the execution as it will require to be proved in the court along with witnesses and evidence that it is so. Therefore, it is of little value in present day scenario. You may write your wish on a piece of paper and also sign it. This is again a legal will but will have to be proved in a court of law of its validity with witnesses and evidence. A will can be written and attested by two witnesses, who can testify that the will was signed by the person in their presence. This is a proper legal will and is referred to as an unregistered will. If it is registered with the office of registrar in the presence of two witnesses after following the due process then it is registered document and referred to as registered will. The original will along with the details and signature of the authority is returned back to the person and a copy is kept in the record along with the computerized version. A certified copy of this document can be obtained after paying the fee. A court will take notice of any such document or its certified copy and this document requires no further proof.

As per section 5 of the Indian Succession Act 1925, any person who is 21 years or more of age, a Hindu, Sikh, Buddhist, Jain, Parsi or a Christian can make a will provided he not a lunatic, minor, insolvent or a person who has been debarred from making the will can make a will. This type of will is called an unprivileged will. A person who is serving in Armed Forces can make a will if he is above 18 years of age and this will is called a privileged will and functions as long as the person is serving in the Armed Forces under war like conditions. This type of will also does not require attestation by two witnesses.  A will is governed by section 63 Of the Indian Succession Act 1925. A legatee can be individual, corporate, trust, Hindu Deity but a minor can be a legate only if a guardian is appointed. A minimum of two witnesses are required to attest the will and the witnesses should be of sound mind, major and should not be a beneficiary in the will. An executor can be named in the will whose job will be to execute the will. This executor can be anybody even a beneficiary in the will.

A will can be of various types. It can be a simple, complicated, and joint or a conditional will. A simple will is the one where a person writes that after his death all his assets are to be given to his wife or to a single other person. This will has a problem that in case of death of wife or other person, the will cannot be executed as the person is no longer alive and a fresh will needs to be written again or the assets will be divided as per the personal law applicable to him.. In a complicated will the person divides his assets in a certain proportion to two or more persons, like, between his wife and children. This has the advantage over a simple will that in case of death of one person the assets will be divided among the surviving members and may not become non executable at all. A joint will is one where husband and wife jointly write their will and assign how the assets are to be divided among other and in what proportion. The only disadvantage is that if the will is to be changed or a codicil to be written then it will again require both the signatures. A conditional will scores above all this by putting certain conditions and listing out how the assets are to be divided in case this condition exists. This will has the advantage that in care of death of spouse, the will does not require any change or amendment as it can still be executable under the prevailing condition while the other condition becomes redundant.

It is also important that both husband and wife should execute a separate will. Both the will can be mirror image of each other. However in case of wife her streedhan and the property of which is sole owner or the property which she receives from her parent’s side is to be specifically mentioned. As the first right on these assets will be of the children and not of husband.

A person cannot give his ancestral property in the form of a will but he can make a will only of his self acquired property. A will does not involve any transfer, nor affect any transfer inter-vivos, but it is an expression of intent after his death. A will regulates the succession one provides for succession as declared by the testator.

If there is no will or the will has become null and void due to any reason or declared so by the court then a person is presumed to have died intestate and his property is divided as per the personal inheritance laws or the Indian inheritance act. If there is an unregistered will and the witnesses are also no longer alive then this unregistered will is null and void. One of the witnesses has to be alive and give evidence/affidavit that he had seen the person signing the will and have attested to this fact and then only the court will presume that the will has been proved and will grant a letter of administration or probate for the will. For a registered will this formality does not exist as it s a public document and the court will take cognizance of it without any proof.

The process of registration of the will is exactly similar to the registration of flat/house/ land or any other document in the office of registrar. Get the will type on a non judicial stamp paper of Rs.100/= and paste your photograph on the first page in two copies (one original and the other photocopy), get it attested and along with two witnesses who are not beneficiary in the will go to the registrar/deputy registrar/ sub registrar office and after payment of the fee the signed original copy will be given to you as registered will. One can also write it on a plain A4 size paper and get it registered as there is no requirement that it should be on non judicial stamp paper.

A will can be changed any number of times during the life time by writing a fresh will and destroying the old one. However, a registered will can be revoked only by another registered will. Minor amendments to the will can be done by writing a codicil and getting the same registered.

A will can be signed by any other person in the presence of the person making the will under his instructions and an annotation to this effect has to be made in the document. Similarly the witnesses before signing will have to state that the same before attesting the document. Even a deaf and dumb person can make a will.

In case you have an unregistered will and also immovable property then you have the following options:-

(1)    Approach the courts to get a letter of administration / probate for the legal unregistered will or registered will. But if the witnesses are no longer alive then you will have to apply for succession certificate in case of unregistered will, as the unregistered will be of no use to you.

(2)    Get the will registered through the registrar. It is a time consuming process and after due verification from the witnesses the will be declared registered by the registrar, If the witnesses are dead then succession certificate is the only answer.

(3)    Get a family agreement with all the legal heirs made and after due attestation get it registered or present it t the court to get the succession certificate as per the agreement..

If there is no will or the will has become null and void or the unregistered will has been destroyed or lost, then the only option you have is to go for a succession certificate from the appropriate local civil court. However, in this case stamp duty on the total value of all assets owned by the person becomes payable at the time of submission of the petition for succession certificate. This can vary from state to state and can be from 2% to 8% in some states. However, it is possible to make a family agreement in which all legal heirs sign and agree to the part ion of the property as per  the agreement and the court will ratify the agreement and issue a letter under its own authority.