Chapt 2 Means of Estate Planning

7/28/2019 Chapt 2 Means of Estate Planning

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12 Estate Planning PDP

Chapter 2


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13Estate PlanningPDP

In this chapter, we will discuss the various means by which individuals can carry out Estate Planning.

Estate Planning means are basically divided into two ways i.e. during ones lifetime and post death.There

are certain tools which become effective during ones lifetime like Trust, Power of Attorney, Gift, Partition.

Some tools which become effective only after death are Will, Succession and Life insurance. Among

these, Trusts can also become effective after death by creating a Trust through ones Will. This type of

Trust is called Testamentary Trust.

Wills and Trusts are common means by which individuals achieve their Estate Planning. Other means

are Power of Attorney, Gifts, Partition, Succession (when the Will is not made) etc.

Will

A Will is a document, which ensures that the wishes of an individual with respect to his assets and

property are followed after his death. Problems and complications often arise when a person dies without

a Will. The absence of a Will or the invalidity of a Will or parts of a Will often generates problems for the

legal heirs and successors.

Yet, many people put off making a Will, not realizing the predicament that this will put their family in, after

their death. Its a little effort that goes a long way.

A person, who owns property in any form, is definitely concerned about his property after his demise. A

Will is an important document, which enables the individuals or any living person to rightfully leave their

assets and wealth to whomever they choose after their death. In this way, a person can ensure that his

wishes with respect to his assets and property are followed after his death.

Introduction

Section 2 (h) of the Indian Succession Act, 1925, defines Will as meaning the legal declaration of the

intention of testator with respect to his property, which he desires to be carried into effect after his

death. In other words, a Will or a Testament means a document made by a person whereby he disposes

of his property, but such disposal comes into effect only after the death of the testator (A person who

makes a Will).

Means of Estate Planning


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After the death of a person, a persons property devolves in two ways:

According to the respective law of succession, when no Will is made- i.e. intestate

By way of Will i.e. testamentary

Law of Succession:

The laws of inheritance are diverse and complicated. The rules of distribution of property in case aperson dies without making a Will are defined by every Law of succession. These rules provide for a

class of persons and percentage of property that will be inherited by such persons. It must be remembered

that it is preferable that one should make a Will to ensure that ones actual intension is manifested.

It often happens that due to ignorance of law, people fail to make a proper and enforceable will.

Consequently, confusion ensues and often, the rightful heirs do not receive their fair share.

When a male dies unexpectedly or where there has been a tragic demise and there is no Will, it often

creates problems for the legal heirs and successors. This can result in unintended injustice. The property

passes to the minor children, the surviving wife and to the mother of the deceased (although not on good

terms) in equal shares. If there is an office or house, an equal share will go to the mother. Shares of

companies are also divided equally. It is difficult to get all the heirs on a common meeting ground to writeto the companies to transfer the shares to the names of the respective heirs. But all these problems can

be obviated if a Will is left behind.

According to the law of inheritance and succession,

(a) If aHindu male passes away:

Hindu female shares equally with the male i.e. a son and daughter will succeed with equal shares.

The wife as well as the mother also gets an equal share.

There is nothing to prevent a Hindu male from bequeathing his entire property to a stranger if he so

desires.

(b) If aMuslim male passes away:

A Muslim male cannot will away more than 1/3rd of the estate i.e. 2/3rdof the property must bedivided among the family members in the shares laid down in the Shariat Act, 1937.

A Muslim wife cannot be dispossessed.

She has to share with other wives if there is more than one wife.

The widow gets a definite share.

Mohammedan Law gives the male heirs, the sons, twice the share of the daughters.

The primary characteristics of a Will are the following:

1. Operation after Testators death: The primary ingredient of a Will is that it takes effect after the

death of the testator. It means that whatever a testator writes in Will, will come into effect only after

his death.


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2 It can be altered by testator or it is of an ambulatory nature : A Will can be altered or modified at

any time by the testator during his lifetime.

Example

Ganshyamdas made a Will mentioning that all his wealth should go to his wife after his death. Later

on, he modified the will mentioning that 2/3rd of his wealth shall go to his wife and remaining 1/3rd to

his sister-in-law.

3.Revocability: The essence of every Will is that it is revocable (declare invalid) during the lifetime ofthe testator. Section 62 of the Indian Succession Act provides that a Will is liable to be revoked or

altered by its maker at any time when he is competent to dispose of his property by Will. Any clause in

a Will that the testator cannot revoke can make the Will void.

Further, no third party can sue for the cancellation of a Will during the lifetime of the testator since the

Will is liable to be revoked by the act of the testator himself.

4. Legal declaration: A Will is a legal declaration. Certain formalities must be complied with to make a

valid Will. It must be signed and attested as required by law.

5. Disposition of property: There must be some property, which is being given to others after thedeath of the testator.

Example

A beggar Fakirchand made a Will, stating that after his death, all his good wishes will be with his son.

Any clause like this cannot become part of a Will, because it does not include any property.

Advantages and Disadvantages of a Will:

Advantages of a Will:

One can name the executor to legally represent him and honour the testators wishes. One can name

the guardian(s) for his children and can specify the distribution of his estate.

One can protect his familys financial future and provide funeral and burial instructions to limit thestrain on those he leaves behind.

One can specify the distribution of his estate, including donations to charities and gifts to friends andclose family.

One can attain peace of mind knowing that everything is in order should the unthinkable happen.

Example

Ram, a testator writes his Will stating that as soon as he falls ill after the age of 60 years, all his wealth

should go to his son Mohan. This part of the Will is completely null and void because the effect of the

Will takes place before the death of Testator. So, if Ram had mentioned that after his death all his

wealth shall go to his son Mohan, his Will is completely valid in the sense that effects of the Will are

after the death of testator.


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A Will can also minimize the taxes on estate and minimize the taxes for beneficiaries.

It can avoid higher administration costs.

Disadvantages of a Will

Subject to Probate proceedings: Probate means a process through which the Probate Court of thedistrict distributes the property of a deceased based on his Will or intestate property to the

appropriate survivors. A Probate procedure consumes a lot of time and money

Becomes public record at the time of your death.

Kinds of Wills

There are different kinds of Wills

Conditional & Contingent Will: Such Wills become enforceable only after the occurrence of a particular

event.

Example

Mohandas made a Will mentioning that his son Pyarelal would be entitled to the flat in Mumbai after

his death (death of testator) only if he becomes lawyer. If Pyarelal became a Chartered Accountant

and not a lawyer, he will not be entitled to the flat after his father death.

Thus, a Will may be expressed to take effect only in the event of the occurrence of a contingency or

condition. If the contingency does not come to pass or the condition fails, the Will is not entitled to a

Probate (The act of proving that an instrument purporting to be a Will was signed and executed in

accord with legal requirements).

Joint Will: Wills made by two or more persons are known as Joint Wills. They operate as if each person

has executed a Will with regard to his own property. Such Wills operate on the death of each testator

and the legatees (someone to whom a legacy is bequeathed) are entitled to the properties of the testator

who dies as if these are two or more Wills constituting a single document.

Joint Wills are revocable at any time by either of the testators during their joint lives, or after the death of

one, by the survivor. The survivor is treated as the Trustee in the joint property if there is a contract that

prevents the Will from being revoked.

Mutual or Reciprocal Will: When two or more persons make a Will whereby they bequeath their

properties to each other, it is known as reciprocal/mutual Will. Such Wills may be revoked by any of the

testators during their joint lives, but it is necessary for that person to give prior notice to the other

testators so as to enable them to make changes in their Wills. E.g. Rajesh and his wife Rajeshwari make

a reciprocal Will bequeathing their properties to each other.


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Duplicate Will: A testator sometimes may execute a Will in duplicate, one kept by him and the other to

be deposited in safe custody with a bank or an executor or Trustee. The testator for the sake of safety,

makes a duplicate Will. However, in order to be valid, each copy must be duly signed and attested. If the

testator destroys the part in his custody, it is revocation of both the Wills.

Concurrent Will: A Testator generally makes one Will at the time of his death. But sometime for thesake of convenience, a testator may give away some properties in his native country by one Will and the

other properties in another country by another Will. Such Wills may be treated as independent and

Probate may be granted to one Will, unless there is any indication to the contrary. But if the Wills are

relating to the properties in both the places, then both Wills must be included in the Probate.

Sham Will: A document purporting to be a Will which is deliberately executed with all due formalities

required for a valid Will can still be nullified if it is proved that the testator did not intend it to have any

testamentary operation, but only intended to have some collateral object e.g. to induce another person

to make him comply with the testators wish. This is because the Animus Testandi (An intention to make

a testament or Will is required to make a valid Will) is essential to the validity of the Will and the same is

wanting in such a case.

Example

Ramprakash wants to distribute his property equally among his wife and two sons, but in order to

induce his younger son, Chotulal to become an Engineer, he makes a Will stating that if Chotulal

becomes an Engineer, he is entitled to the whole of his property. In the above example, the Will is a

Sham Will because Ramprakash (testator) did not intend to dispose all his wealth to his son.

Holograph Will: A Holograph is a Will entirely in the handwriting of the testator. It is considered to be a

very good form of Will, because it is in the handwriting of the testator and its authenticity is enhanced for

the same reason.

Privileged or Oral Will: This isvalid in law only if it is made or executed by a soldier employed in an

expedition or engaged in actual warfare or by an airman so employed or engaged or by a sailor at sea

if he has completed the age of 18 years to dispose of his property by a Will. Such Wills may be in writing

or by word of mouth.

Who can make a Will?

According to Section 59 of the Indian Succession Act, the following can make a Will:

Any person of sound mind.

Any person who has reached the age of majority.

The following persons cannot make a Will:

Lunatic and insane persons.

Minors i.e. below 18 years of age. In case a guardian is appointed to a minor, such a minor

reaches age of maturity only at the age of 21 years.

A person imprisoned in jail.


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Points to Remember

Testamentary capacity: This capacity is found only in a sound disposing state of mind. It is essential for

the testator to have sufficient capacity to comprehend perfectly:

The conditions of his property.

His relationship with the persons who were/should/might have been the object of his property.

The scope and bearing of the provisions of his Will.

This, however, does not mean that, in order to make a Will, a person should have his mental conditions

at his best and unaffected in any degree by old age or disease. Nevertheless, a testator should have

sufficient memory and intelligence at the time of making a Will to take a proper judgment regarding the

nature and effect of the disposition of his property.

Soundness of mind: If a person is of unsound mind at the time of making a Will, such a Will is not

enforceable. Soundness of mind denotes the mental capacity of the testator to recognioze what he is

doing, his capacity to understand his extent of property, and his relationship with the person who should/

might have been the object of his property. However, soundness of mind does not depend upon age.

Even a person of 100 years can write a Will, till he is proved incapable by medical evidence.

Undue influence: Even a Will made by a person of sound mind but under undue influence will be

declared void. To declare a Will valid, it is essential that the testator should be of sound mind, possess

the discretion to manage his general affairs and not be influenced by any one while making Will.

Content knowledge: It is imperative that the testator must have the knowledge of the contents of the

Will which he executes. If the testator does not know about the contents of the Will, then it can be

declared as void.

Act cannot be delegated: A Will must be the testators own voluntary act. A testator cannot delegate

his power to another person.

Final will: The law is that in order to be effective, the Will should be the last and final Will of the testator.

If a person writes a Will and subsequently writes another, then, the latter is termed as his last Will.

Free agency of testator essential: Section 61 of the Indian Succession Act lays down that a Will or any

part of a Will, the making of which has been caused by coercion or fraud, or by such importunity as takes

away the free agency of the testator, is void.

Right to property under a Will: Any person can be a devisee, including a minor or lunatic. Under

Mohammedan law, a devise in favour of an heir is not valid without the consent of other heirs. Generally,

the devisee need not give his assent in order that legacy transfer may take effect.

Executor

An executor is the person appointed ordinarily by the testator by his Will or Codicil. In other words, an

executor is duty bound to distribute the assets of the testator as per the provisions of his Will. A Probate

of a Will is granted only to an executor appointed by the Will.


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Who can be an Executor?

All persons capable of executing a Will can be executors. Even a minor can be appointed an executor of

a Will but a Probate cannot be granted to the minor until he attains majority. A testator can appoint one

or more executors. The appointment of an executor may be absolute or for a limited purpose or limited

time. An executor as such does not derive any benefit under the Will unless specifically provided for.However, as an executor has vast powers and the property vests in the executor until it is finally distributed

to the legatees, it is advisable to appoint a responsible and accountable person/institution as an executor.

The executor is primarily appointed to manage the estate of the deceased for the benefit of the

beneficiaries/legatees under the Will.

Legal status of the Executor

The executor is the legal representative for all purposes of a deceased person and all the property of the

testator vests in him until the property is distributed as per the provisions of the Will. The executor is

entitled to represent the testator in any legal action (not including criminal or defamatory proceedings).

For example, an executor can sue for recovery of the testators debts. It is only the legal estate of the

deceased that vests in the executor and the vesting is not of beneficial interest. The property vests in the

executor only for the purpose of representation and administration.

Duties of an Executor:

To ascertain the assets of the deceased person.

To pay testamentary and funeral expenses.

To collect the debts and assets of the deceased.

To pay the debts of the deceased.

To apply for a Probate whenever necessary.

Applicable laws & Special provisionsIndia has a well-developed system of succession laws that governs a persons property after his death.

The Indian Succession Act 1925 applies expressly to Wills and Codicils made by Hindus, Buddhists,

Sikhs, Jains, Parsis and Christians but not to Mohammedans as they are largely covered by Muslim

Personal Law. The following laws are applicable-

The Indian Succession Act, 1925

Hindu Personal Laws

Muslim Personal Laws

The Indian Registration Act, 1908

Special Provisions

Hindus, Sikhs, Jains and Buddhists:

A Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists.

The executor can also be the witness to the Will.

A Probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai,to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.


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Parsis and Christians:

A Probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai,

to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.

On the marriage of a Parsi or Christian testator, his/her Will stands revoked.

Muslims:

Muslim Personal Law governs a Muslim testators power to make a Will, the nature of the Will, its

execution and attestation thereof etc. Under the Muslim Personal Law, a Muslim testator can make a

Will orally or in writing and no form is required for such writing. However, it is preferable to have a written

Will. If the Will is in writing, it need not be attested. It may be noted that the provisions of the Indian

Succession Act do not generally apply to a Muslim testator unless specifically stated in the Act.

In India, a person who is a major and of sound mind can make a Will and he can dispose of all or any

part of his property by Will. However, there are two basic restrictions on the power of a Muslim testator

to make a Will:

A Muslim can bequeath only one-third of his property by Will. The remaining two thirds must, in anycase, be distributed according to rules of intestacy, unless there are no heirs at all claiming adverselyto the legatees.

If the bequeath is in excess of the one third of net assets, the consent of the heirs must be givenafter the death of the testators

A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void if aMuslim testator after making the Will, becomes of unsound mind and continues to be so till his death.Similarly, a bequest which is contingent, or conditional or in the future or is alternative to another pre-existing one is void.

If the heirs are minors at the time of testators death, consent must be given only after attaining majority.

A guardian is not competent to give consent on behalf of a minor.

If an executor is appointed by a Muslim testator, the powers and duties of the executor will be in accordancewith the provisions of the Indian Succession Act which have been discussed elsewhere.

Codicil

According to section 2 (b) of the India Succession Act, a Codicil is an instrument made in relation to a

Will and explaining, altering or adding to its dispositions and shall be deemed to form part of the Will.

Accordingly, a Codicil has to be executed and attested just as a Will. (Section 64, Indian SuccessionAct).

For example, after a Will has been properly made in law, the testator may want to make some changesin the Will. Here, he may cancel the earlier Will and make a fresh Will incorporating the desired changesor he may alter only the relevant parts of the Will suitably by way of a Codicil. Such a Codicil will formpart and parcel of the existing Will. A Codicil, to be valid, must be executed and attested in the same

manner as a Will. It is a supplementary document to the Will and cannot be independent by itself.


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Some important points related to Codicil are as follows:

It is an instrument made in relation to a Will.

It explains, alters or adds to the dispositions of a Will.

It shall be deemed to form part of the Will.

The Testator may want to change the names of the Executors by adding some other names. In thatcase, this is done by making a Codicil in addition to the Will, as there may not be other changesrequired in the main text of the Will.

The Testator may want to change certain bequests by adding to the names of the legatees orsubtracting some of them, perhaps due to the death of the beneficiaries or the Executor. This can bedone by making a Codicil.

The Codicil must be reduced to writing.

It must be signed by the Testator and attested by two Witnesses.

Letter of Administration

This is a certificate granted by the competent court to an administrator.

Where there exists a Will:

The administrator is authorised to administer the estate of the deceased in accordance with the Will.

Where a Will does not name any executor

An application can be filed in the court for grant of Letter of Administration for the property.

And in accordance with law, where the deceased has died, intestate.

Probate

During a Probate, the copy of the Will is given to the executor, together with a certificate granted under

the seal of the court and signed by one of the registrars, certifying that the Will has been proved.

Some important points relating to a Probate are as follows:

The application for Probate shall be made by petition to the court of competent jurisdiction.

A copy of the last will and testament of the deceased should be annexed to the petition.

The copy of the will and the copy of the grant of administration of the testators estate together formthe Probate.

It is conclusive evidence of the validity and due execution of the will and of the testamentary capacityof the testator.

A Probate is obtained to authenticate the validity of the Will.

The Probate is still the only proper evidence of the executors appointment.


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Probate in Detail

What is a Probate?

At death, the Will goes through Probate. Probate simply means the process by which the last Will is

determined to be your final dispositive statement and which confirms the appointment of the person or

institution the testator has named to administer his estate. The term Probate is also used in the larger

sense of probating his estate. In this sense, Probate means the process by which assets are gathered,

applied to pay debts, taxes and expenses of administration, and distributed to those designated as

beneficiaries in the Will. The Executor or Personal Representative named in the Will is in charge of

this process, and Probate provides an orderly method for administration of the estate. The executor is

held accountable by the beneficiaries (and sometimes is supervised formally by a Probate court). The

executor is entitled to a reasonable fee or commission. Probate law generally encourages or provides

for partial distribution during the period of administration; assets may generally be distributed in kind

rather than sold during this time. The tax laws generally focus the responsibility for death tax filings and

payments on the executor under a Will. Thus, the choice of an executor is an important one.

The basic job of administration and accounting for assets must be done whether the estate is

handled by an executor in Probate or Probate is avoided. In the recent past, lawyers and other

professionals have advocated the use of Probate avoidance techniques (including revocable

Trusts) in states where the Probate process was perceived as being too slow and too costly.

Many states have simplified or streamlined their Probate processes over the years. In such

states, there is now less reason to employ such Probate avoidance techniques.

The Probate Process

On filing the Probate proceedings, all legal heirs will receive notices from the court for filing objections if

any. If the heir does not appear before the court, it will be presumed that he has no objection to the grant

of Probate. Children and spouses of the deceased brothers and sister can also file objections to thegrant of Probate. A Will can only be challenged if:

It is not properly executed.

It was not properly attested by the witnesses or the person in fact had not executed at all.

The person who executed the Will was influenced by the beneficiaries.

The beneficiaries had taken interest in the execution of the Will.

Giving a statement of No Objection is not necessary but the presumption will be drawn as statedabove. But if no objection is given in court, it would be better.

A Succession Certificate

A Succession Certificate can be granted by the court to realize the debts and securities of the deceased

and to give valid discharge. A Succession Certificate is a certificate when granted to the person, empowers

the person to receive interest or dividends, negotiate the transfer or any of them with respect to the

securities of a deceased person.


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P.S: Securities means any bond, stock, debenture or security

The person is required to dispose of the amount so realized in accordance with the rights of the person

entitled thereto. The person requiring the Succession Certificate may file an application in the court,

where the properties of the deceaseds relative are situated or where he / she normally resided. Depending

on the value of the estate of the deceased, the matter shall go to the type of court, which can conductcases for that value [This is known as pecuniary jurisdiction of the court].This includes the names of all

other heirs of the deceased as the respondents in the matter. A newspaper notice is also issued apart

from mandatory notice to the respondents. Upon the expiry of the time period (normally 1 and a half

months) from the date of publication of the notice after the respondents have given their No Objection,

the court passes the orders for issuance of the Succession Certificate to the person/s making such an

application. Judicial Stamp papers of sufficient amount (as per the prescribed court fees structure) are

to be submitted in the court, where after the Certificate is typed by the court staff, duly signed and sealed

and delivered. It takes about 3-4 months from the date of filing to receive your certificate.

Will & Nomination

The nominee merely acts as the Trustee. In some instances, the nominee and the beneficiary of theWill is the same person.

At all times, the provisions of the Will shall prevail over the nomination.

It is advisable to have the same person as the nominee and the beneficiary of the Will, so as toprevent future disputes.

A nomination, in order to be effective, need not be executed as a Will but must be in accordancewith the formalities required by the particular provision applicable.

Attestation of a Will

The testator shall sign or shall affix his mark to the Will, or some other person shall sign it in hispresence and by his direction.

The signature or mark of the testator, or the signature of the person signing shall appear clearly andshould be legible. It should appear in the manner that is appropriate and makes the Will legal.

The Will shall be attested by two or more witnesses, each of whom has seen the testator sign oraffixed his mark to the Will or has seen other person sign the Will, in the presence and by thedirection of the testator, or has received from the testator.

Personal acknowledgement of testator signature or mark, or of the signature of such other person.Each of the witnesses shall sign the Will in the presence of the testator.

Each of the witnesses shall sign the Will in the presence of the testator, but it should not be necessarythat more than one witness be present at the same time, and no particular form of attestation shallbe necessary.


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Execution of a Will

On the death of the testator, an executor of the Will or an heir of the deceased testator can apply forProbate.

The court will ask the other heirs of the deceased if they have any objections to the Will.

If there are no objections, the court will grant Probate.

A Probate is a copy of a Will, certified by the court. A Probate is to be treated as conclusive evidenceof the genuineness of a Will.

In case any objections are raised by any of the heirs, a citation has to be served, calling upon themto consent.

This has to be displayed prominently in the court.

Thereafter, if no objection is received, the Probate will be granted.

It is only after this that the Will comes into effect.

Forms & Formalities to make a Will

Form of a Will

There is no prescribed form of a Will.

In order for it to be effective:

It needs to be properly signed and attested. The Will must be initialed by the testator at the end of every page and next to any correction and

alteration.

Language of a Will

A Will can be written in any language.

No technical words need to be used in a Will.

The words used should be clear and unambiguous so that the intention of the testator is reflected inhis Will.

Stamp Duty

No stamp duty is required to be paid for executing a Will or a Codicil.

A Will need not be made on stamp paper.

Attestation

A Will must be attested by two witnesses who must witness the testator executing the Will.

The witnesses should sign in the presence of each other and in the presence of the testator.


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However, according to Hindu Law, a witness can be a legatee. Under Parsi and Christian law, a witnesscannot be an executor or legatee.

A Muslim is not required to have his Will attested if it is in writing.

Registration:

Under section 18 of the Registration Act, the registration of a Will is not compulsory.

It is strong legal evidence that the proper parties had appeared before the registering officers and thelatter had attested the same after ascertaining their identity.

A Will must be proved as duly and validly executed, as required by the Indian Succession Act.

Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot betampered with, destroyed, mutilated or stolen.

It shall be released only to the testator himself or, after his death, to an authorised person whoproduces the Death Certificate.

The cover should be superscribed with the name of the testator or his agent with a statement of thenature of the document.

An amount of Rs.1,000/- will be charged as fee. The deposited cover may be withdrawn by thetestator or his agent on payment of prescribed fee of Rs.200/-.

Effects of Registration and Non-Registration: Though a Will is not compulsorily registrable, the mere

fact that a Will is not registered is not a circumstance to go against the genuineness of the Will.

Revocation

The essence of every Will is that it is revocable (declare invalid) during the lifetime of the testator.Section 62 of the Indian Succession Act provides that a Will is liable to be revoked or altered by its

maker at any time when he is competent to dispose of his property by Will. Any clause in a Will that the

testator cannot revoke can make the Will void.

Modes of revocation: There are three modes of revocation of a Will as follows:

1. By another Will or Codicil

2. By destruction

3. By marriage

Proof of revocation: To prove that the Will had been revoked by the testator, it has to be proved that

the testator had made another Will or Codicil or by some writing declaring his intention to revoke the will.

Such a revocation can also be proved by burning, tearing or destroying the will by the testator or some

other person in the testators presence and by his direction, thus clearly indicating his intention of revoking

the Will.

Testators capacity to revoke: A Will is easily revocable until the death of the testator. The testator

must be of sound mind at the time of revocation. A revocation is not valid if the testator is insane at the

time of revocation.


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Matters to be kept in mind while making a Will:

Mention of the name and address of the testator and date of writing the Will.

The intention must be very clear and unambiguous. The testator must clearly and in simple languagespecify his intention. Use of technical or difficult words must be avoided.

Mention must be made of the fact that the Will is being made voluntarily and out of free will, without anycoercion or undue pressure and under sound state of mind.

The identity of the property being bequeathed must be very clearly specified and the identity of theperson entitled to the property must also be very clearly specified giving details of his fathers nameand relationship with the testator.

The property being bequeathed must be legally bequeathable by the testator.

The Will must state that it is the last Will of the testator and all previous Wills and Codicils have beencancelled or revoked.

Each bequest of property must be in a new paragraph.

The executor or executors, Trustees or guardians appointed by the Will must be clearly describedand their powers defined and their previous consent to the appointment must be obtained.

All obliterations, corrections, inter lineatlons or alterations in the Will or Codicil must be signed orinitialed both by the testator as well as the witness.

There must not be any blank spaces in the Will or Codicil.

Each page of the Will or Codicil must be signed by the testator and attested by the witness.

The Will must be attested by at least two witnesses, one of who may preferably be a doctor attestingto the sound state of mind of the testator at the time of making the Will.


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Format of a Will

I, ___________________________, son/ wife of _________________________ , resident of

________________________ age __ years, am making this will on the __ day of ________ _____ out

of my free volition and without any coercion or undue influence whatsoever and state that this is my last

Will and that I hereby revoke all Wills and Codicil made by me at any time heretofore. I bequeath myproperty, interests and other rights as follows:

1.I bequeath on my death to _______________________________, my title, interests, and all other

rights which I have as owner of the residential / commercial property at _________________ I hereby

state that he shall be entitled to use and enjoy the said property at his own will after my death.

2. I bequeath on my death the following ornaments and jewellery belonging to me to __________ :-

(give list of ornaments)

3. I bequeath on my death, cash balance lying with me at the time of my death to ______________.

4. I bequeath on my death, bank balance lying in my name at Savings / Current Bank Account No._____ Bank of ______, _________________ Branch, ______ at the time of my death to

_______________________________.

6. I bequeath the amounts receivable by me at the time of my death from various parties on various

accounts to ____________________.

7. I bequeath the amounts and other valuables owned by me and lying in locker number _________ in

my name at Bank_________, (Branch) at the time of my death to ___________.

8.I direct that a sum of rupees ________________ Only (Rs. _____/-) be set apart from my assets at

the time of my death and be donated to a charitable Trust or persons whose aim and objective is to

provide food, medical assistance, education assistance, etc to needy persons.

9. I direct that before distributing my assets in accordance with this will, all my debts, liabilities and

monetary obligations including all testamentary expenses, costs, charges, expenses in respect of Probate

and other legal charges at the time of my death be met out of my assets.

10.I bequeath all other residuary property, assets and other rights whether or not existing at the time of

my death to _______________________________.

I further state that my father, Mr. ______________________ is appointed as the executor of this Will.

I declare that the executor shall have all the powers as may be necessary to execute this Will.

I declare that I am the owner of the properties mentioned in this Will and am entitled to make this Will. I

am of sound mind and health at the time of making this Will.

In witness whereof, I have hereunto set and subscribed my hand and signature on this __ day of

_____________.

Signed


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Signed by Mr. _______________on his last Will and testament, all being present at the same time.

Thereafter at his request and in his presence, we subscribed our respective names and signatures as

attesting witnesses all being also present at the same time.

Signature of Witnesses

1. I have witnessed and read the aforesaid Will.

Sign

2. I have witnessed and read the aforesaid Will.

Sign

3. I have examined Mr. ______________ on the date of this Will and wish to state that he appears to be

in of sound mind and sound mental health at the time of making the above Will.

Signature of doctor

Documents

Chapt 2 Means of Estate Planning