How to Draft a Will?

Profile of the Author- Shriya Ojha is a 2nd-year student of LLB at Faculty of Law, University of Delhi. She is deeply interested in constitutional and criminal law.

Introduction

The demise of an individual, apart from being surrounded by grief is also closely followed by a legal question: how will a succession of the property of the deceased person take place? In a country, as diversified as ours, succession is a complex and sensitive issue. And hence, there are a different set of succession laws prevailing in the country pertaining to various communities and for different kinds of successions. Succession may follow in two forms-

1. Intestate succession – When a person dies without making a Will or the Will becomes void or non-functional, the person is said to have died intestate. In such a case, succession laws will be applicable based on the individual’s religion. Hindus, Sikhs, Parsees, Buddhists, Jews, Jains, Christians follow the Hindu Succession Act, 1925 for succession, while Muslims follow Muslim Personal Law Application Act 1937.
2. Testamentary succession- When an individual dies after making a Will, the succession takes place on the basis of the Will or testament.

In the following article, we shall demystify testamentary succession by understanding -

1. What is a Will?
2. Legal terminology surrounding a Will
3. Who can make a Will?
4. Procedure of enforcement
5. What are the essential things to remember while drafting a Will?

What is a Will?

Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. [1] It is popularly known as “Vasiyat” or “Vasiyat Nama” in India. It is a unilateral document and takes effect after the death of the person making it. It is a document that ensures that the wishes of a person with respect to his/her assets and property are executed after the death of such person. In other words, a Will or a Testament means a document made by a person whereby he disposes of his property but such disposal comes into effect only after the death of the testator.

Legal Terminology surrounding a Will

Testator- The person writing the Will

Legatee- The beneficiaries of the Will

Codicil [2]- Codicil means an instrument made in relation to a Will, and explaining, altering or adding to its disposition, and shall be deemed to form part of the Will. It is an extension of the Will of the testator.

Executor [3]- The person appointed by the testator to oversee the execution of the Will. The executor does not have to be a lawyer; it can be anyone, even a minor. However, a probate will not be granted to such minor person until he/she attains the age of majority.

Probate [4]; Letter of Administration; Letter of Succession - Probate refers to a copy of the Will that is certified by the seal of a court of competent jurisdiction. It is a judicial process that gives authenticity to the Will and authorizes the executor to duly administer the Will. The judicial process involves determining the beneficiaries, the executor, the value of estate etc. In case a testator does not nominate an executor in his/her Will or dies intestate, the beneficiaries of the deceased will have to obtain a Letter of Administration from the court which will bestow the beneficiaries with the same administrative powers as bestowed on an executor. A letter of succession is issued by the court in case the testator leaves behind the only moveable property.

Who can make a Will? [5]

• The person must have attained the age of majority and must be of a sound mind.
• A person with a disability like impaired hearing, vision or speech is capable of making a Will as long as the person knows what he/she is doing by it.
• A person who is intoxicated or ill to an extent that hampers his comprehension cannot make a Will.
• The person making the Will should be free from undue influence/ fraud/ coercion, and the making of a Will should be a voluntary act.

Procedure of Enforcement

There is no fixed format of how a Will should be drafted. A Will can be made on a regular paper; a stamped paper or a notarised paper is not required. The testator must ascertain the assets, the legatees and the executor and clearly identify how he/she wishes to bequeath the properties. The testator must sign or affix the Will along with the attestation of two or more witnesses. The witnesses must not be beneficiaries of the Will but can be appointed as the executor.

Registration of a Will is the next step. Although not a compulsory one in India, it gives more authenticity to the Will as it provides evidence that proper parties had appeared before the registering officers and attested the same after ascertaining their identities. Once a Will is registered, it is placed in the safe custody of the registrar and therefore cannot be destroyed or tampered with. Registration can be done at the office of a sub-registrar.

Revocation and alteration [6] can be done solely by the testator by adding a codicil, revoking the earlier Will, execution and registration a new one. In case of a Parsi or a Christian testator, his/her Will stands automatically revoked after marriage. However, the same does not hold true for others.

Enforcement of a Will can be done by means of probate or a letter of administration as may be necessary. Obtainment of probate is compulsory under section 2(f) and 213 of the Indian Succession Act as a general rule. However, certain exceptions exist in different states wherein probate as per regulations of the specific state. A letter of succession is granted in case the testator has left behind the only movable property. Such an instrument of enforcement can be obtained from court after payment of the court fees that differ from state to state.

What are the essential things to remember while drafting a Will?

There is no fixed format for drafting a Will. However, to avoid disputes or challenges against the Will before the court, certain things should be kept in mind-

1. It is to be noted that any person having attained the age of majority can draft his/her own Will. One does not necessarily need a lawyer to do so.
2. A Will can be drafted in any language and does not need any technical words or phrases. A Will can be handwritten or typed. However, a handwritten Will is advisable as the chances of being challenged are reduced. Typed Wills are more susceptible to tampering or changes that cannot be detected whereas any tampering/insertion of new pages etc. can be easily detected in case of handwritten Wills. It is also important that the pages are properly numbered.
3. The language used in the Will must as clear as possible to avoid any confusion in the administration of the Will. The primary duty of the court is to understand the intention of the testator so that his/her wishes are honoured as intended.
4. It is advisable that the personal details, as well as details of a government-issued id (Aadhar number or PAN number) of the testator, executor, witnesses and the beneficiaries are mentioned to ascertain the identities of these individuals. One must also make sure that the details are put exactly as present on other government ids because any disparities could lead to the nullification of the Will in case a dispute arises.
5. It is advisable that the testator mentions that if any other Wills prior to the current one exist, they stand revoked.
6. Another self-declaratory statement that the testator must mention is that he/she is executing the Will voluntarily and is of sound mind as these are the major grounds on which Wills are challenged.
7. It is pertinent to note that a Will can only be executed against self-acquired property or self-owned assets.
8. A residuary clause can be added i.e. a clause stating that all assets that are not mentioned in the Will must go to a specific beneficiary can be added to avoid confusion or dispute arising out of the same.

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References

[1] Indian Succession Act 1925 S.2 (h)

[2] Supra S.2(b)

[3] Supra S.2(c)

[4] Supra S.2(f)

[5] Supra S.59

[6] Section 62 of the Indian Succession Act, 1925