What is a Will?
A will or testament is a legal declaration by which a person, known as the testator, names one or more persons to own and manage his properties and assets after his death. In other words, a will provides for the distribution and transfer of the property of the testator after his death and hence, should always be registered. (Will registration after death)
A Will can be made by anyone who has attained the age of majority in India. A Will is a statement made by the testator in the written form stating the manner in which his estate/property must be distributed after his death. A Will being a testamentary document comes into effect only after the death of the testator. If a person dies without writing any Will then he is said to be have died intestate. Such a situation may lead to disputes among the family members / legal heirs after the death of the testator with regard to the distribution of the property and there may be the possibility of litigations in the court. Therefore, it is always advisable to get a will drafted and registered before its too late.
What is the process of Registration of Will?
The steps involved in the Registration of Will are as follows:
1. The will is drafted / prepared by a lawyer / legal expert.
2. A date is fixed for the Will registration in the Sub Registrar office.
3. The Government registration fee is paid.
4. The testator and 2 witnesses visit the sub registrar office on the fixed day for registration.
5. Registered will can be collected after a week.
Registration of Will
There is no restriction on the power of the testator to bequeath his self acquired properties. The testator can bequeath his movable and immovable properties either to his family members like son, daughter, mother, father, brother, sister, grand children or even to strangers such as temple, religious or charitable trusts etc through a registered will. A Will can be drafted at any time during the life of a person. There is no restriction on how many times a Will can be altered by the testator. A person can cancel, amend or change his will as many times as he wishes after revoking the earlier wills. After the death of the person, only the Last Will executed by the testator shall be effective.
Succession planning through a will is important for ensuring transfer of wealth in an organized manner and avoid any sort of confusion. It ensures that wealth is transferred to the person the testator chose, that the interests of the weak or of minors are provided for, that the assets are distributed without and disputes in the family and that the wealth is transferred to trusted people who will respect what the testator has accomplished.
Advantages of registration of Will
Although it is not compulsory to get the Will registered, it is highly advisable to get it registered in the Sub Registrar Office during the life time of the testator. The registration of Will provides an evidence that the testator and the witnesses had appeared before the Sub Registrar and the Sub registrar had registered the will after ascertaining their identity.
If the will is registered, it will be easier for the legal heirs to get the title of the property transferred in their favour by way of Mutation in the records of DDA, L&DO or MCD. Otherwise, they will have to approach the court to get a probate or get succession certificate which is a lengthy, complicated and costly process. It will take atleast 6 to 8 months’ time in obtaining a probate of the will if the Will is uncontested. A court fee of 4% of the value of property has to paid in Delhi for obtaining the probate along with the fee of the advocate / lawyer.
Once a Will gets registered, it is copied in the records of the Sub Registrar Office, and therefore, it cannot be tampered with / mutilated, destroyed or stolen. Thus, a registered will helps in avoiding possibilities of any dispute between the legal heirs and also reduces the possibilities of forgery as the legal heirs can always obtain the certified copy of the original Will.
Importance of making a Will
1. Grieving family members will not have to worry about what goes to whom—you will have already laid it out in clear terms to them.
2. You can also cater to the special and individual needs of certain family members, such as those who are handicapped, infant children, widowed daughter, ill parents etc
3. Unlike the law of inheritance, you can make provisions for those who might have helped and served you in bad times (such as a faithful maid, nurse or a friend).
4. We may try to always act our best, but let’s face it: there are some bad apples among us. Making a will can help prevent family disputes after your death.
5. You can revoke the privileges of family members you deem unworthy to have any share in your property after your death.
6. Because you never know when it is your time to go (natural and unnatural causes can get anyone at any age), it is highly advisable to make a will, even if you are in your twenties or thirties.
7. Don’t think that just because wills are legal documents, they can’t be personal. You can certainly express your feelings regarding your family, friends, and acquaintances in your document.
Drafting of Will
Many people try to save money when it comes to making a will, and draft the will themselves or get it prepared from unqualified document writers just to save a few thousand Rupees and put their entire lifetime’s savings and properties worth lakhs and crores at risk. What they do not realise is that if the will is not drafted properly along with all the necessary clauses, it will be easy for the other family members to challenge the Will in the court of law. Any ambiguity or lack of clarity in the language of the will can provide a good ground for challenging the Will. That is why it is recommended that the will should be drafted / reviewed and registered by a good lawyer or advocate.
How to Make a Will in India
The will must be made in writing. Hindus, Sikhs, Christians, Jews, Sains, and Parsis must always put their wills in writing. Handwritten wills are acceptable, but typed wills are preferred. This is because bad handwriting can lead to confusion. It is recommended that you type your will with adequate margins on both sides of the paper.
The Proper Way to Make a Will
1. You need to state the name and the address of the testator
2. You must state that the testator is in a sound state of mind and is making the will voluntarily
3. If possible, you should state the necessity or urgency for the execution of the will
4. You must list the family members and individuals who will be beneficiaries of the testator’s property
5. You must write in clear, non-vague language.
6. You must make all bequests in accordance with existing law.
7. You can appoint an executor.
8. You can make a schedule for the properties to be bequeathed.
9. You must have the will attested by at least two witnesses.
Points to be remembered While Making/Writing Your Will
• You must mention the name and address of the testator, as well as the date and place of execution.
• Do not use technical language, as it can lead to confusion. You should try to be as clear as possible.
• You must make it clear that no one is forcing you to make the will. Coercion or undue influence renders a will void.
• You must make it clear that this is the final will of the testator, and that all other wills and codicils have been revoked.
• You should make each new bequest of property in a new paragraph.
• You should not leave any blank spaces in the will or codicil.
• You (the testator) must put signatures on each page of the will.
• You must have the will attested by at least two witnesses. It is better if one of these witnesses is a doctor, as a doctor can attest to your sound state of mind when the will is being executed.
Altering or Revoking a Will
A will can be changed, altered, or revoked before the death of the testator. This ensures the testator’s freedom in the giving his or her property to any person as per his own wishes. Any will made under undue influence of coercion or fraud will automatically be void.
There is no limitation in regards to the testator’s ability to deal with his or her property. This means that near family members can be excluded in the will. A will can provide that the testator’s property be bequeathed to strangers / outsiders. While this is definitely okay as long as the testator is in a sound state of mind and working voluntarily, a court would need to have sound evidence that the testator was, indeed, mentally coherent at the time of making the will, as such provisions usually raise concerns regarding the testator’s mental state.
Executing the Will
When executing a will, keep the following in mind:
a) The will must contain the signature of both the testator and witnesses.
b) These signatures must be clearly placed and show the testator/witnesses’ intention.
c) The will must be attested by two or more witnesses who have witnessed the signing of the will by the testator. Similarly, the witnesses must have knowledge of the testator having signed the will. All parties must sign the will in presence of each other, but not at the same time.
d) There is no particular form of attestation. The will must be attested by two witnesses, but these witnesses need not attest at the same time. This means they can meet with the testator at different times to attest the will.
e) Remember: wills need not to be written on stamp paper. However, you should definitely register your will, as it will increase its security and help prove its authenticity.
Registration of Will after death
In some cases, a Will can be registered even after the death of the testator. The Sub-Registrar shall register the Will only if he is satisfied about the genuineness of the Will. However, practically, it is quite difficult to get a will registered after the death of the testator. The registration of will after death of the person is at the sole discretion of the registrar and frequently they do not allow such registrations due to risk of fraud, forgery etc.. So, it always better to get the Will registered during the life time of the testator.
Important Points to note for Registration of Will in Delhi :
1. No stamp duty is required to be paid for the execution & registration of a will. A will can be executed on just a plain paper.
2. Government Registration Fee has to be paid by the testator.
3.The Testator (i.e. the person writing his will) along with two witnesses has to present himself before the sub registrar for the registration of will along with their Identity proof such as Aadhar Card, Voter ID card, Passport etc.