A will is an important document that allows a person to outline how they want their belongings to be distributed after they pass away. It serves as a legal declaration in India, ensuring that your assets, money, and property are distributed according to your preferences. While the process of drafting a will might seem complex, it can actually be quite straightforward if you follow the correct steps and keep a few key points in mind. Here’s a simple guide to creating a will in India.

Types of Wills in India

According to the Indian Succession Act, 1925, there are two primary types of Wills in India:

• Privileged Will: This type of Will is created by soldiers, airmen, or mariners while on duty, especially in war-like or expeditionary conditions. These Wills can be either oral or written and have fewer formal requirements.
• Unprivileged Will: This is the most common type and applies to everyone else. It must meet certain legal formalities, such as having attesting witnesses and being signed by the testator. Most individuals, including civilians, prepare unprivileged Wills.

Essentials of a Will

A valid Will must fulfil certain basic criteria:

• Testator’s Intent: The person making the Will (the testator) must express the intention to distribute their property after death.
• Written Declaration: The Will must be in writing (either typed or handwritten), stating how the assets will be distributed.
• Revocation and Alteration: A testator has the right to revoke or alter their Will at any time during their lifetime.
• Witnesses: The Will must be signed by at least two witnesses, who do not need to know the contents but must confirm the signature of the testator.

Who Can Make a Will?

According to Section 59 of the Indian Succession Act, 1925, a person can make a Will if they:

• Are at least 18 years old.
• Are of sound mind. That means a person conceives fully the nature and consequences of his actions.

A person may still create a Will if they are temporarily of unsound mind, such as during a period of illness or intoxication, as long as they are mentally sound at the time of writing a Will.

Step by Step Process for Drafting a Will in India

Drafting a Will comes with a well-structured approach. Here are 4 steps involved in drafting a will:

• Step 1: Drafting the Will

Consult a Lawyer: It’s advisable to consult a property lawyer such as the experts at Zolvit who would know all the aspects that must be borne in mind before drafting a Will. A lawyer can also help ensure that the Will is legally valid and issue-free.

Key Details: Your Will should have your name in full and address and other identity particulars followed by a statement declaring it to be your last Will and testament.

• Step 2: Witnesses and Signatures

You must sign the Will in front of at least two witnesses. These witnesses should also sign the document, confirming that you executed the Will voluntarily and without any pressure.

• Step 3: Registration (Optional)

Although registration of a Will has never been compulsory, it is a good practice to have one’s Will registered. Registration ensures additional legal protection and the authenticity of the document on record. To register, take your witnesses along with you to your local sub-registrar’s office.

• Step 4: Execution

A Will becomes “executed.” Your wishes come into effect after death when you have applied for Probate from the court.

What Should be Included in a Will?

A well-drafted Will should include the following:

• Testator’s Details: Full name, address, and other relevant personal information.
• Declaration of Sound Mind: A statement confirming that the testator is of sound mind and not under duress.
• Beneficiary Information: The names and details of individuals or organisations who will inherit the assets.
• Executor: The appointment of an executor who will ensure the Will is executed as per the testator’s wishes.
• Asset List: A detailed list of all properties, assets, and belongings to be distributed.
• Share Distribution: A clear division of assets among the beneficiaries.
• Guardianship of Minor Children: If applicable, specify who will take care of any minor children.
• Witnesses: The Will must be signed by the testator in front of at least two witnesses.

Rules Governing Property Transfer Through a Will

The transfer of property through a Will in India is governed by several legal acts:

• Indian Succession Act, 1925: Governs the distribution of assets in a Will.
• Indian Registration Act, 1908: Relates to the registration of Wills.
• Indian Stamp Act, 1899: Stamp duty does not apply to Wills, as no stamp paper is required for execution.

Grounds for Challenging a Will

A Will can be contested on several grounds, including:

• Coercion or Fraud: If the Will was created under duress or deceit.
• Lack of Testamentary Capacity: If the testator was not of sound mind when drafting the Will.
• Improper Execution: If the Will was not signed in the presence of required witnesses.
• Suspicious Circumstances: If the circumstances surrounding the Will’s creation are questionable.

Revocation of a Will

A Will can be revoked by:

• Destruction: If the testator destroys the Will or says that he or she wants to abolish it in writing.
• Making a New Will: A new Will shall automatically revoke any previous Will.
• Marriage or Divorce: Under the Indian Succession Act, marriage or divorce may invalidate an existing Will.

How Zolvit Can Help

A will may involve several complex concepts related to being clear in law and minimising possible future disputes. Zolvit offers thorough legal services to help formulate a legally sound will that adheres to any and all requirements. Here’s what we can do:

• Legal Consultation: Zolvit provides professional advice on the complexities of structuring a will so that it truly reflects the wishes of the person concerned and complies with all legal standards.
• Drafting Services: We will aid in the drafting of a clear and unambiguous will covering all aspects of your estate.
• Will Registration: Zolvit will assist in the registration of the will, thus rendering it legally enforceable.
• Executor and Guardian Appointment: We will assist you in finding the right executor and guardian for your children, ensuring that your wishes are honoured.

Conclusion

Making a will in India is an easy yet important step that ensures your possessions are distributed according to your wishes. By following the necessary procedures and keeping in mind the previously provided advice, you can create a will that is enforceable in court and avoids needless disputes among your loved ones. Registering your will and consulting a lawyer will help you feel more at peace and safeguard your preferences. Contact Zolvit if you need expert legal counsel and help drafting your will.

FAQs Related to Drafting A Will