Making a will

Chapter 7

A Will is written statement giving directions for disposition to be made of a persons property after his / her death.

Will

By law it means the legal declaration of the intention of the testator with respect to his property which he desires to be carried out after his/her death. Briefly, a Will has been described as any writing making a voluntary disposition of a property

Will

1.A person makes a Will by his own volition. There should be no fraud, coercion or undue influence in the making of the Will. 2. The Will must be signed (or marked with a thumb impression) by the testator.

PRECONDITIONS OF A WILL

3.The signature (or mark) must be attested by at least two competent witnesses in the presence of the testator. 4.All erasures & alterations require signatures of the testator and also of the witnesses.

PRECONDITIONS OF A WILL

5. A beneficiary under a Will (legatee) should not be an attesting witness. 6.The wording of the Will should be clear and without any ambiguity in meaning, context or reference.

PRECONDITIONS OF A WILL

A Will is written in the first person I throughout. A general format is as follows: 1. COMMENCEMENT:I (full name and address) make this last Will of mine on (date). 2. REVOCATION: I hereby revoke all earlier Wills and codicils. (The last Will in time prevails)

FORM OF WILL

3. PRELEMINARY: I am making this last Will of mine voluntarily and consciously without any compulsion from any source and I am in sound state of mind. 4. PROPERTIES BEQUEATHED: I own the following movable and immovable self-acquired properties.

FORM OF WILL

5. BEQUEST PROPER: I hereby bequeath as followswholly and absolutely (specify the properties and name the beneficiaries.) 6. BEQUEST OF RESIDUE: I also bequeath property not otherwise disposed of by this Will to (name the person).

FORM OF WILL

7. EXECUTOR: I hereby appoint (name of the person) as executor of my Will. It is not essential to appoint an executor. However, in case of considerable wealth, it is desirable, or sometimes even necessary, to have an executor who can complete certain formalities. The testator must choose a person in whom he has confidence and who is capable of acting as executor. The previous consent of the executor should be obtained: an alternate may be appointed as well to provide for any contingency. An executor can act as witness, or a beneficiary as executor but not as witness.

FORM OF WILL

8. CLOSING PART: In witness whereof, I (testator) have put my signature to this Will of mine. 9. ATTESTATION: Signatures of witnesses.

FORM OF WILL

i) TESTATOR: Man who makes the Will. ii)LEGATEE: One to whom legacy is left iii) AMBIGUITY: Double meaning iv) POSTHUMOUS: Born after fathers death or published after authors death. v)HUF: Hindu United Family. vi)REVOKE: Cancel.

LEGAL TERMINOLOGY

vi)BEQUEATH: To leave property. vii)CODICIL: When a testator wishes to make some minor alterations in his Will he do so by executing a codicil, which is treated as part of the Will. If the changes are too many, it is advisable to write a fresh Will while revoking the former. ix)BEQUEST: Disposition of movable property. x)DEVISE: Disposition of immovable property.

LEGAL TERMINOLOGY

xi)EXECUTOR: A person appointed by the testator to give effect to his Will. xii)TESTAMENTARY DISPOSITION: Both bequest and devise. xiii)PROBATE: Means copy of the Will certified under the seal of a court. A competent court will grant probate or official proof of the authenticity of a Will.

LEGAL TERMINOLOGY

1. A Will may be made by any major person competent to contract, in any form or language, typed or written by hand, preferably on good quality durable paper. 2. It is not necessary for the witnesses to know the contents of the Will. However, it is better if they are aware of the testamentary character of the instrument. (Any person, not a minor, below 18 years), can be a witness. As far as possible, the witnesses should be younger than the testator.

GUIDELINES

3.To facilitate proof of the Will, the occupation & place of residence of each witness should be added after their names. 4.If the Will consists of several sheets of paper, it is appropriate that the testator signs each sheet to ensure genuineness.

GUIDELINES

5.Though not obligatory, it is prudent to register a Will. If registered by the testator himself, it Will be a strong circumstance to support the genuineness of the Will. 6. A Will must be kept in safe custody may be in a bank which has got executive & trustee department. Or at home, it should be put in a sealed envelope & kept in a safe place with the family members being informed.

GUIDELINES

7. The testator must specifically state if assets held in joint names for the sake of convenience are his own and absolute properties. 8. A Will or codicil is exempt from stamp duty. Hence, it need not be on a stamp paper.

GUIDELINES

9.A Will executed in anticipation of death (i.e. on death bed) gets revoked upon the person recovering from the sickness due to which he had anticipated his death. 10. A special or privileged Will can also be made by a soldier on the battlefield, such Will has to be handwritten by the testator and even one witness is sufficient, though not mandatory. The Will must be found on the body of the soldier if he falls in action.

GUIDELINES

11. To avoid ambiguity, a Will may list family members whether legatees or not. 12. A Will made by a person other than a Hindu, Buddhist, Sikh or Jain stands revoked by the marriage of the maker. A new Will in the event becomes necessary. In fact, a Will should be periodically reviewed and updated to reflect changing circumstances and preferences.

GUIDELINES

13. The writer of the Will should take into account debts & liabilities while making the disposition.

If a person dies without making a Will, he is deemed to die in testate and the property is subject to in testate succession. The law then takes its course and depending on the community to which the deceased belonged, the property is divided among the relatives as defined by the applicable statute / personal code. It is prudent, therefore to make ones Will and thus spare the heirs / relatives the legal hassles that would otherwise ensue.

DYING INTESTATE