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Why, when and how to write a Will

Posted on September 30 2020


Anybody who has any kind of property should write a Will which will cost them nothing and can help them to save your family a lot of time and money in the future.

Significant of a Will is underestimated in our country. This is counter-intuitive because most of the Indians like to invest and have capital properties like house, land and jewellery, which are prone to strife between the heirs in absence of a Will. There is a misconception about writing a Will where only multimillionaires or only those with a long list of heirs, whereas those who is having meagre properties and few heirs must make a Will, so that there is no problem while transferring their properties. Let us go through some of the points while writing a Will.

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Will is specifically useful only if you don't want your properties to be delegated presenting to the succession laws of a religion-based personal law code

Intestate succession

Dying intestate is a person who dies without making a Will, can create lot of problem like no centralized record of the properties, trouble in determining legal heirs and sharing the properties; transferring the properties to an heir; no trustee or executor to oversee the legislation; and likely lengthy process, costs.

In the estate, the heirs will have to attain a surplus of documents to claim the stakes. Legal heirs of the dying intestate have to attain letters of administration from the court, where the former has left behind the movable and immovable properties or attain a succession certificate from the Court in case the former has left behind any movable properties.

The properties of the former have to be divided between the heirs as per the personal law applicable to the former in the absence of a Will. In many cases, a harmony between the heirs is needed to administer the estate.

Legal conflict to solve administers comes at a cost. The court fees for Testamentary Petition and Suit for Administration are covered at a maximum of Rs. 75,000 and Rs. 3 lakh, respectively and the fee differs from state to state. Apart from this the fees of the lawyer will also vary depending up on the experience and the case complication.

Important clauses

In order to make a definite Will, its aspect is not impaired, you can add numerous clauses. Generally, Wills are imprecise and unclear. To avoid any uncertainty, these clauses are needed. In general, one should include clause to clearly state that it is the last Will and testimony of the testator and that all the previous Wills stand invalidated. It should clearly set out complete details of all the movable and immovable properties and give details like their description, location, and financial value (if possible). The Will must also give that the Testator is not making the Will under intimidation or inappropriate consequence.

A Will is especially useful if you want your assets to be delegated according to your wishes and not as per the succession laws of a religion-based personal law code.

If you want to impart some properties to your spouse, some to your children in various dimensions, some to give for your parents and remaining left will be given for friends and associates. Such conditions can only be met if clear directions are left in a Will. To assure this you can add an "in terrorem" clause, is a Latin word which means “fear”. Generally, a terrorem clause is integrated where a Will discussion is predictable.

By integrating such a clause, you can advise the heirs that if they challenge the Will, they can lose what has been imparted to them. A testator has two children, and six assets of equal value. She then goes ahead and imparts five assets to the elder one and only one to the younger one. The division is obviously not equal. If our testator wants to prevent her younger child from litigating the Will, then she can state in her Will that if the younger one objection with the Will, she will not be designated to any of the assets.

Registering a will

It is not necessary to register a Will. Neither the Indian Succession Act, 1925 nor the Indian Registration Act, 1908 give for compulsory registration of a Will.

Therefore, it is useful to both the administrator and heirs of the Will as it adds legitimacy. It is commendable to register a Will as it gives strong legal indication of its proper execution and makes it less prone to pointless objections. Registration of the Will gives indication that the testator and the witnesses had appeared before the concerned office of sub registrar of assertion and that the latter had verified it after determining their identification.

A copy of this Will is preserved at the registrar's office and hence cannot be changed, destroyed or stolen. As the Will is not registered that does not mean that it is not appropriate. The cost of registering a Will varies from state to state and the cost is nominal.

Irrespective of the amount of your wealth, you should write a Will to expedite smooth transmission of properties to your loved one. Given that the cost of writing and registering a Will is insignificant, related to the cost of dispute, it beneficial to have it ready as soon as possible and no Will is final. You can even modify or change it as many times as you want. Each new version can be registered by paying the prescribed registration fee and only the last one will count.

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