Legal Deeds

8/3/2019 Legal Deeds

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TopicWILL

by


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What is a Will.yA willis a legal declarationofa mansintention, which

he desires to beperformed after his death.

y Thefundamentalidea ofa willis that thepersonmaking the willshould there by dispose hispropertyin the matter that seems best to him.

yAperson who makes a willissaid to have died testate.


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Statutory Definition of Will:y The term Willis defined under Section 2(h)ofIndian Succession Act, 1925,means thelegal

declarationoftheintentionofa testator with respectto hisproperty which he desires to becarried intoeffect after his death.

yThere are twoessentialcharacteristics:-y It comesintoeffect after death oftestator and

y It is revocable during thelife timeofthe testator.


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Statutes Relating To Wills:There are manylaws which are dealing with theconceptofWills asfollows:

y Indian Succession Act, 1925y HinduLaw (Hindus PersonalLaw)

y Muslim Law (Muslims PersonalLaw)

y Indian Registration Act, 1908


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Kinds of Wills

1. Conditional orContingent Will

2. Joint Will3. Mutual Will

4. Concurrent Will

5. Holograph Will

6. Privileged and Unprivileged Will


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Who Can Make Will:y Everypersonofsound mind not being a minor may dispose

hisproperty byWill. (including a married women)

y Any deafor dumb or blind personcan also make a will byshowingconsent through writingor gesturesinsignlanguage.

y Apersonofunsound mind can also make a will but onlyinhislucid intervals.

y

Prisoner or alien arenot debarred from making aWill.y HoweverWillcannot be made bypersonslike minor,insolvent, a person disqualified under anylaw bycourt.


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For Whom A Will Can Be MadeyAnypersoncapableofholdingpropertycan be alegateeunder a will and therefore a minor,lunatic, a

corporation, a Hindu deity and other juristicpersoncan be a legatee.

y Ifthe minor person has beennamed aslegatee by atestator then a guardianshould be appointed by the

testator himselfto manage the bequeathed property.


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General Procedure To Make A

Will:Thereisno defined format for making aWill but ageneralprocedureshould be adopted while writing a

Will which includes.1. Declarationstating that theWillis madeinfullsenses and

isfreefrom any kind ofpressure and undueinfluence andshould alsocontain hisfullname, address, age,etc

2. A detailed list ofProperties and Documents (also

mentioning the value and location)

3. Detailsofownership to be transferred to theTestator.

4. Attestationofthe Will

5. ExecutionofA Will


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How do you make a Will?A will hasseveralparts, which dulycompleted, makeup

a completeWill. Though thereisnolegalor defined

format, there is a template,which has beengenerallyused for ages. Itssimple,its verylogical and derivesfrom commonsense. Letslook the wholeformat andsomeimportant points whilecreating a will.


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Step 1 Declaration in the

beginningIn thefirst paragraph, you have to declare that you are

making this willin your fullsenses and freefrom any

kind ofpressure. You have to mention your name,address, age,etc at the timeofwriting the willso thatit confirms that you really are,in your senses


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Step 2.. Details of Property and

Documents :y Providelist ofitems and their current values,like

house,land, bank fixed deposits,postalinvestments,

mutualfunds,sharecertificatesowned by you.y Must alsoindicate, where all these documents arestored by you.

yAll abovend willshould bestored in bank safe

deposite box.y Makesure youcommunicateit to theexecutor oftheWillor your family members . I am sure, theyll beprettyinterested in this


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Step 3 Details of ownership :At theend ofthe will, youshould mention whoshould

own your assetsitems and in what proportion, after

you havegone. Ifyou aregiving your assets to a minor,makesure you appoint a custodianofyour assets tilltheindividual you haveselected, reaches an adult age.Thiscustodianobviously, has to be a trustworthyperson.


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Step 4 . Signing the Will :At theend,once youcomplete writing your will, you

must sign the will verycarefullyinpresenceofat least

twoindependent witnesses, who have tosign after yoursignature,certifying that you havesigned the willintheir presence.

The date and place, also must beindicated clearly at the

bottom ofthe will.Oneimportant point whilechoosing witness,is that theyshould be your friends,neighbors,or your colleaguesand not the direct beneficiariesin theWill.


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Making a Will through Lawyer:Do-it-yourselfwillsoften donot contain all thenecessarycomponents as required bylaw and manytimes ruled asinvalid bycourts (for examplenosignaturesfrom witnessor no witness at all). Many atime,it can happen that whilecreating the will, youusesuch ambiguouslanguage that it resultsinlengthylegal battles (My Houseshould go to Sunita. Now if

both mother and wife arecalled Sunita, which Sunitaought toget it?. Anyone who might benefit from theambiguityofthe willcan jumpin toclaim a share! Andifthecourts decidein his/her favour, you wont likethat situation (not that, youll be around!)


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Registration of Wills:yAccording to the Section18 ofthe Registration Act,1908 - RegistrationofaWillisoptional.

y However there aresome advantagesofregistrationofa

Willlikey Cant be destroyed, mutilated,lost or stolen.

y Kept insafecustodyofthe registrar.

y Stronglegalevidence that proper parties had appeared

before the registeringofficers and thelatter hadattested thesame after.

y No bodyexamines thecontentsofWillunless withexpresspermissionor on death oftestator.


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Procedure forregistration:1. AWillis registered at theofficeofSub-Registrar.

2. The testator along with his witnesses, both inperson,

should gofor attestationofWill to thesub-registrar.3. ScrutinyofWillinstrument is done by thesub-registrar.

4. When registrar issatisfied with all the documents thensub-registrar will make theentryin the Register bywriting year, month, day and hour ofsuch presentationofthe document and willissue a certified copy to thetestator.


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Ifregistrarrefused toregister:y Testator himselfor his authorized agent caninstitute acivilsuit in a court oflaw and court willpass decreeof

registrationofWillifcourt issatisfied with theevidenceproduced.

yAsuit canonly befiled within 30 days after the refusalofregistration by the registrar.

y

Ifthe testator willing to withdraw theWill after theprocessofregistration then a sufficient reason has tobegiven to registrar,ifsatisfied he willorder for theregistrationofWill.


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Stamp Duty for Registration

y No Stamp Dutyischargeableon a will.


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Revocation of Wills:AWillisliable to be revoked or altered by the maker ofit

at any time when heiscompetent to disposeofhis

property byWill.

VoluntaryRevocation.

InvoluntaryRevocation.


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Probate:

y It is thecopyofthe will which isgiven to theexecutortogether with a certificategranted under thesealofthecourt and signed, byoneofthe registrars,certifyingthat the will has beenproved.


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Wills By Muslims Under

Mohammedan Law:Its aninterestingfact :-

yA will may bein theform oforal or writtenifthe will

isin writingneed not besigned ifsigned need not beattested.


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Important points while making a

Will..y Ifpossible, have the two witnesses be a doctor and a lawyer.

A doctor signing a will, wont raise anyquestionofyou,beingofunsound mind. Thelawyer, will vet the will and

makesure you dont makestupid mistakes at the timeofwriting and signingit.y The attesting witness and hisor her spouseshould not be a

beneficiaryunder the termsofyourWill. This might createvested interests and some times make your willinvalid.Also, makesure the witnesses are younger than you and not

veryold as your will might beineffect for several years!And you want them to bepresent in this worldy Write your willongood quality thick whitepaper soit

doesnt get spoiled over a period oftime. It should bestored in a plasticenvelopeinfullsize, without folds.


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Will..y Note that youshould keep just one morecopyofwill and

stored separatelyfrom theoriginal will. The will must bestored verysafelyin your bank,insafe deposit box. You

must alsoinform your next ofkin, as to where you havestored your will. Donot make manycopiesofyour will

y IncaseofHindus,it should beclearlystated ifthepropertyisinherited or not, becauseit makes a huge difference, asno ancestralpropertycan be assigned to anyperson

through a will. All rightsoninherited property are acquiredby birth. Soifyouinherited a propertyfrom your Father,youcannot sayin a will, that you want to assignit topersonXonly!It willgo to all your legal heirs asit isInherited


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Will..yA will must always be datedand ifmore thanone willis made, theonewith thelatest date willnullify all the

previousones. Infact, thereshould be a statement inyour will,nullifying allother previous wills. Thepagesshould benumbered to avoid fraud.

y The valueofassetsoftenfluctuates,soit is better to

mention how much each beneficiary will receive,inpercentage terms rather than absolutenumbers.Unlessit ispurecash.


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Execution of Will in Court ?y When you are dead, thereissomeonecalled anExecutor who will be responsiblefor dividing your

wealth amongst the beneficiaries and he will makesure the wholeprocessissmooth (You must haveseenthisin Hindi movies). It isnot legally required togetthe willexecuted in a court oflaw inpresenceofajudicial MagistrateinIndia. However,ifyou wish, thewillcan beexecuted in thepresenceofMagistrateorthepublicnotary,nominated by thegovernmentauthorities and sealed in their presence.


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Features of A Valid Will: The NameofThe Testator

Right To Appoint Legatee

To Take Effect After Death RevocabilityUnderThe Law

Intention ofThe Testator supreme

The Declaration tobe Last Will

Lost Subsequent Will