All about Making a Will in India: Formation, Registration & Execution
BY: PRANSHU SINHA
Succession planning is important to ensure transfer of one’s property and riches accumulated over time are disposed off in a manner and at the time as per your decision. It ensures that wealth is transferred to individuals you choose, that the interests of the weak or of minors are provided for, that your wealth is distributed without family disputes and that your wealth is transferred to trusted people who will respect what you have accomplished. A ‘Will’ is the only way in India to legally transfer one’s legacy to others.
A will is a testament that declares the intention of the person with regard to his wealth and property, which he wants to be executed after his death. It is a unilateral document and takes effect after the death of the testator (Person who made the will) and in no circumstances can it operate while the testator is still alive. The Executor appointed by Testator, ensures the will is executed in the exact same manner as provided by the them after his/her death. Executor may or may not be a person receiving benefits under that will. It is the duty of an executor to get a copy of the probate from court. However on the death of the executor or if the executor fails to perform his duties, the beneficiary can do that himself. If the testator had debts during the time he was alive those can be met from the property passed on in the will.
Since the will comes into operation after the death of the testator. Therefore it is better if the age of the executor is less than that of the testator.
In India, provisions of the Indian Succession Act, 1925 govern the wills made by a Non-Muslim people. While provisions of Muslim Law govern the wills made by Muslim people.
WILL WHEN MADE & BY WHO?
The testator can make a will anytime he wishes to with or without the help of a lawyer/legal expert and it shall be legally binding even if it is on a plain sheet of paper rather than a stamp paper as long as it is made in the presence of two witnesses. Every person who is of sound mind and is not a minor can make a will granted that he/she is aware of what they are doing and are capable of knowing the consequences of it.
REGISTRATION OF WILLS
Registration of wills is not mandatory in India.
Supreme court in the case of Narain Singh v. Kamla Devi has held that mere non-registration of the Will an inference cannot be drawn against the genuines of the Will.
A Will is not a compulsorily registrable document under section 17 of the Registration Act, 1908, (Act), and according to section18 (e) it is the testator’s choice as to whether he wishes to register it.
Although it is always advisable to register it and to get a will registered one has to necessarily write it on stamp paper. If a Will is registered, then at the time of dispute, the due execution of ‘will’ (i.e. it was executed legally and not under undue influence/coercion, the mental state of the testator at the time or by any other means which would make the will void) would be presumed and not required to be proved, which otherwise usually ends up unnecessarily wasting a lot of time of both the grieving parties. Once a Will is registered, a copy of it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate.
Since a testamentary disposition always speaks from the grave of the testator, the required standard of proof is very high. The initial burden of proof is always on the person who propounds the Will i.e. claims the right to benefit from it.
PROCEDURE FOR REGISTRATION OF WILLS
The basic steps to be followed in order to register a will are as follows
- A will is drafted either by the testator alone or by a lawyer/legal expert in presence of testator.
- The Sub-Registrar or the Registrar of the district courtunder whose jurisdiction a major part of the property
- Government registration fee is to be paid.
- The testator along with 2 witnesses (with their identity proof) is required to go to the office of the registrar in order to sign and get the final formalities done. (Registrar can visit the house of testator only in cases where their health is such that they cannot attend the office.)
There is no stamp duty required for registration of the will.
A will once made can be revoked or altered at anytime the testator wishes to do so and the new ‘will’ thus formed will be binding rather than the previous one. Even registered wills can be changed as and when the testator feels like to do so. If a will is lost, it is presumed to be revoked. If the will was seen with the testator, but could not be found after the death of the testator, it will be presumed that has been revoked by the testator by destroying the same.
There are different kinds of wills in India. If the will is made by a husband and wife together then it is an example of a Joint Will. A joint will is written by two or more persons together who dispose of their property as a team. Such wills come into effect after the death of all the testators. Any of the testators can revoke the will during his/her lifetime even after the death of the other.
WHO INHERITS A WILL?
Legal heirs or any beneficiaries’ name written in the will can inherit/claim right on the property of the deceased testator.
Any person capable of holding property can be beneficiary under a will and therefore a minor, lunatic, a corporation, a Hindu deity or any other juristic person can be a beneficiary.
PROBATE OF WILL
On the death of Testator the will does not automatically devolve to the beneficiaries. A ‘probate’ is required for the same. A probate is a certificate by a court of law that the will in question is valid. If a probate is taken a notice has to be given to the beneficiaries so that they can file their necessary objections. Even if there isn’t any objection given, a court fee has to be paid before a probate can be obtained. Even after a will is made a path is left open for the court to hear objections to the will, if any, by the beneficiaries.
A registered or even an unregistered Will can be probated by a beneficiary or an executor of the Will through a lawyer.
The importance of the will cannot be underestimated and it should be the bounden duty of every adult person to make out a will in a detailed and a transparent way so that the beneficiaries can inherit the assets bequeathed to them without going in for legal disputes or litigation.
“In the last few years, there have been a lot more cases of families facing disputes over transfer of wealth. This is making people aware about issues that the heirs may face if there is no succession planning. An increasing number of our clients ask for succession planning, but this segment is still small,” says Kalwani of BNP Paribas.
So if you belong to the majority who haven’t planned their succession yet, it’s time to collect your thoughts and write your will. Make sure that your assets and wealth are put to best use even after you are gone. Stop procrastinating and jot down your legacy on a piece of paper.
Pranshu Sinha is an avid researcher & writer and is currently the 3rd year Law student at Dr. Ram Manohar Lohia National Law University, Lucknow.