IMPORTANCE OF MAKING A WILL

[D. Saha & Co.]

???THE GREATEST CERTAINTY IN LIFE IS DEATH, BUT THE GREATEST UNCERTAINTY IS THE TIME.- CARL SANDBURG (American Poet & Journalist)

History has seen innumerable cases of strife due to wealth right from the Vedic ages. Till date the scenario has not been changed, only the ways of settlement have. There are various famous cases and judgments which have time and again reinforced the importance of having a Will. This may sometimes lead the lay man into believing that Will is only for the famous and the rich. But, this is not true. As per PIB data 2016, 76% of all cases pending in Indian Courts are relating to Family and Property Disputes. We feel, most of which could have been avoided if proper Succession Planning or Will were in place. Study suggests that the property dispute cases go on for a minimum average of 10 years. The inordinate delay in dispute resolution results in huge amount mental and emotional upheal with distress, leave aside the financial loss since litigations in our country puts a lot of strain on the pulse.

    What is a Will :- Will is a written declaration that speaks for you after your death. It can communicate how you want your property and assets to be distributed; name a guardian for your children if you pass away before they reach adulthood; and leave specific instructions like arrangements for your funeral, organ donation, forgive debts and a lot more. A Will gives you the comfort of knowing that the rewards of your life's work will be distributed and managed according to your wishes.

    Importance of Will :- It is important to make a Will because, when you die without a Will or a Succession plan which is known as intestate succession , Succession laws of country decides which family members will inherit your estate and in what proportion. In India it is the Hindu Succession Act or Indian Succession Act or Muslim Law based on the religion of the person. This may not be the way that you would have wished your money and possessions to be distributed.
Most people want to distribute their property differently than the state would distribute it. For example, many people want to leave gifts to friends, distant relatives, helps, educational or charitable organizations and intestate succession does not allow for any of that. If you want other people or organizations to inherit some of your property, or if you want to decide the proportions, a Will can make sure your wishes are followed. Also this helps in saving taxes and stamp duty.

    Legal Heir :- Legal Heir is a person; male or female, who is entitled to succeed to the properties of the deceased person under the applicable personal law for Succession. As per Hindu Succession Act if there is no Will the properties are allowed to be distributed equally to Class 1 heirs equally, if there is no one in Class 1 heir, in such case properties are distributed equally to Class 2 heirs, if there are no such heirs in class 2 also, the properties are given to Agnates and lastly to Cognates. If no one is available all properties are taken away by the Government.

     I. T. :- No, as of date any property received under the Will does not attract any tax including capital gain tax. In past there was an Estate Duty tax which was abolished way back.

    Who can make a Will :- Any person above the age of 18 can make a Will with sound mind i.e capable of understanding his actions and is free from any undue influences.

    Myths & Facts :-

   Registration:
Registration of Will is not mandatory. It is recommended in cases where chances of the Will getting challenged can be perceived.

   Stamp Paper:
Will on a plain paper is valid. There is no need to take the print of the Will on a stamp paper.

   Nomination:
Appointment of nominee is a stop gap arrangement. Succession Law supersedes nomination in most cases.

   Gifts Vs Will:
Gift to non relative has tax implications. By gifting, the right to the property is relinquished immediately. However in the case of Will, the property is transferred only after the death of the person writing the Will. Stamp duty is also applicable on gifts.

   It is too early to make a Will:
???Death is certain, but the timing is uncertain. Especially at a time when the world is going through an unprecedented situation of a global Pandemic, the luxuries to procrastinate Will making to old age is not there. With the inset of westernization of India, nuclear family structures are at a rise. This makes Will making at an early stage an essential.

   Will can only be written once in a lifetime:
One can change his/her Will innumerable times in his life span. In fact, it is recommended that the Will be revisited every 3-5 years due to changes in financial status, relationship status, social status and the like. The last dated Will is the final Will. Changes to a Will can also be done through codicil.

        Key ingredients of a Will are as follows :-

   Testator Details :
Name, age, address details of the person making the Will.

   Legal declaration :
A Will is a declaration by which a living person (called testator) declares his desires or intentions. The declaration must be legal.

   With respect to his/her property :
A Will can only be made with respect to the property that the testator owns or has rights over. The simple rule is that one can only give what one has. There is no way that one can give away something that one does not have.
The details of the properties which the testator wants to give to his beneficiaries under his Will like the description, the registration and whether it is his self acquired property etc. If it a movable property, then the details and description of each should be clearly and individually mentioned.
One can bequeath pets, paintings, antiques, electronic items, furniture & fixtures, intellectual properties like Trademark, Patents, Copyrights, Licenses, Social Media Accounts, Personal Belongings, Books, etc.
Ancestral properties in which title / ownership is legally transferred are allowed to be bequeathed by a Will.

   Beneficiary Details :
In case of multiple beneficiaries, the details of each beneficiary like name, age, address, relationship of the beneficiary with the Testator.

   Desires to be carried into effect after his/her death :
The Will must state clearly that the testator desires that it comes into effect after his/her death. A renunciation during one???s lifetime does not amount to a Will. If the document desires to partition property among the testator???s sons while the testator is still living, the document cannot be called a Will.

   Guardian for Minors :
If the Testator wishes to give his property to any beneficiary who is a minor, then definitely he should appoint a guardian who will take care of the minor???s property till the minor attains majority.
Many times, people create a Trust by way of Will for the benefit to all the Legal Heirs, Friends, Relatives or for Charitable Purpose.

   Executor of the Will :
The Testator should appoint an Executor to his Will. An Executor is a person who shall implement the Will after the document just below the last sentence in the document.

   Exclusions :
The Testator cannot give any property that is joint family property or ancestral property that is common to many other members too. Such a Will becomes void.

    What are special provisions in case of will by Muslims :- Muslims are mainly governed by their personal laws in respect to Will and Inheritance, and only certain part of general succession law in India , known as Indian Succession applies to them. As a general rule, Muslims can make a Will of only 1/3 rd of his/her properties and the remaining properties are distributed in tested succession as per the Sheriat Act.

        CODICIL to the Will :- If a testator intends to make a few changes to the Will, without changing the entire Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will. One must note that a Will or Codicil is not unalterable or irrevocable. They can be altered or revoked at any time.When you decide to make a Will, what not to miss when making a Will:

   The testator should have attained the age of majority.
   Will can be made a person having a sound mind.
   It is recommended to attach the Doctor???s Certificate as a proof for the same.
   It is recommended that an expert be involved in the drafting of the Will.
   It is suggested that every page of the Will should be signed by the testator with page numbers mentioned therein.
   The testator should sign his Will in the presence of at least two witnesses.
   The Will should be attested by the two independent witnesses.
   Witness can be anyone other than beneficiary.
   The video recording of the Will signing ceremony is also recommended.
   Executor must be communicated about the place of storage.
   It should be clearly mentioned that this is the last Will and it supersedes all other Wills.


Disclaimer :- (You are advised to consult your Legal Counsel before taking any decisions. This is issued only for the purpose of public awareness and information. The Contributor or any of his employees/associates will not take any responsibility for any actions of the reader based directly or indirectly on the basis of the above Article.)