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Will is a legal document, by which a person, declares his/her intentions, wishes or decisions regarding how his/her wealth, assets, and properties, whether moveable or immoveable, tangible or intangible, is to be distributed after his/her death. A will usually names one or more persons as the Executor, who manages the estate or the properties mentioned in the Will until it is finally distributed to the heirs as provided in the Will. The Indian Succession Act, 1925, governs the rules regarding will made by a Hindu, Buddhist, Sikh or Jain.

According to Section 2(h) of the Indian Succession Act, 1925, “A Will or Testament is a legal declaration of the intention of a person when he wants to distribute his estate as a testator to the people who would be inheriting the estate after his death." 

It is to be noted that a testator cannot include any property in his Will, which is a joint family property or ancestral property.

Who can make a Will?

According to Section 59 of the Indian Succession Act, 1925,

·       A Will can be made by any person who attains majority at the age of 18 years. 

·       A person must not be mentally challenged, but if a person is mentally sound at the time of making the Will, that Will shall be valid in the eyes of Law. 

·       A Will is not valid if the person is unable to understand the nature and consequences of his acts due to intoxication at the time of making the Will

Contents of a Valid Will:

A Will should contain the following details:

·       A Will must clearly state the personal information of the testator, including name, age, lineage, and address.

·       It must specify the beneficiaries, including their names, ages, addresses, and their relationship with the testator.

·       The estate or property details, including the registration number, date of registration, and any other relevant information.

·       The details of other assets, including their whereabouts.

·       The testator must appoint an executor to oversee the execution of the will after his/her death.

·       The Will must include the date of creation and the signature of the testator.

Registration of a Will:

According to the law, the registration of a will is not mandatory. The lack of registration does not cast doubt on the authenticity of the will, and it is entirely up to the testator to decide whether or not to register their will. However, registering a will offers certain benefits, such as ensuring the document is kept safe in the custody of the Registrar and protected from tampering, destruction, damage or theft. Additionally, registration provides evidence of the Testator and witnesses appearing before the Registering Officer and confirming their identities. This can help to reduce the likelihood of disputes surrounding the will's validity and provide further support for its authenticity.

Legal requirements for a Will:

There are certain legal requirements that must be met for a will to be considered valid in India.

·       A will must be in writing.

·       Signed by the testator (or someone on their behalf, at their direction and in their presence).

·        Witnessed by at least two persons who are not beneficiaries under the will.

These requirements are outlined in the Indian Succession Act, 1925, and failure to meet them can result in the will being declared invalid.

Importance of updating Will:

A Will is not a static document, and it is important to review and update it periodically to reflect changes in your personal circumstances or preferences.  For example, if you acquire new assets, change in constitution of the family, or intend to change the executor named in the Will, you may need to make amendments to ensure that your wishes are still accurately reflected.

Challenges to the validity of a Will:

Even if a will appears to meet all the legal requirements, it can still be challenged in Court if there are allegations of fraud, undue influence, coercion, or other factors that may have affected the testator's decision-making. In such cases, it may be necessary to provide evidence to support the validity of the will, or to contest the allegations that are being made.

Probate of a Will:

Probate is defined under section 2(f) of the Indian Succession Act, 1925 as – “A copy of will certified under the seal of the court of competent jurisdiction with a grant of administration of the estate of the testator”.

Will expresses a person's wishes to be carried out after his death by certain people named in the will. The people named in the will to carry it out are known as the executors. Only the executor of the will can be granted probate. Probate is conclusive proof that the will was validly executed, is genuine, and is the deceased's last will.

According to the provisions of Indian Succession Act, 1925, probate of a Will is required in the following cases:

·       Where the Will is made in within the local limits of the High Courts of Calcutta, Madras and Bombay;

·       Where the Will is made outside these limits but relates to immovable property situated within these limits.

Although probate of the will is not required in all other cases, it is advisable to obtain probate in cases where the validity of the will may be challenged in the future on any grounds.

Letter of Administration:

A Letter of Administration is a court-issued document obtained by the legal heirs of a deceased for the purpose of administering his/her estate. The key difference between a Probate and a Letter of Administration is that a Probate is granted by the court when the deceased has left a Will, while a Letter of Administration is sought when there is no Will or the appointed executor is unable or incapable to execute the will. In such circumstances, the beneficiaries may apply for a Letter of Administration to the relevant court, instead of a Probate.

According to section 234 of the Indian Succession Act, 1925, "Grant of administration where no executor, nor residuary legatee, nor representative of such legatee.—When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the Will, and letters of administration may be granted to him or them accordingly."

Benefits of Will:

·       A Will clarifies the distribution of property. It helps in clearly expressing the deceased person's desire regarding the distribution of his/her property, avoiding confusion and misunderstandings among family members.

·       It becomes essential when the deceased has several dependents, such as children or other family members, who are financially dependent on them.

·       A Will allows the testator to bequeath his/her property to someone outside of the line of succession or to an outsider.

·       A well-drafted Will can also help to reduce the amount of Inheritance Tax that may be payable on the deceased's property or wealth.

·       A person can write their own Will, and in some states, even a hand-written Will is recognized, provided it is written in the individual's own handwriting. However, it is recommended that the Will be witnessed by two attesting witnesses and registered with the Sub-Registrar for added protection.

·       The most significant advantage of a Will is that it is a revocable instrument and can be modified during the lifetime of the testator.

Process of Registration of Will in Delhi:

Although Section 17 of the Registration Act, 1908 does not need will registration, it is usually desirable to do so because doing so almost eliminates the possibility of a will challenge in the near future. Following are the steps to be followed while registering will in Delhi:

1.    One needs a professionally written will by counsel in order to start the will registration process in Delhi.

2.    You are now prepared to visit the closest sub registrar once your will is ready for registration

3.    Make sure you have two copies of the will, two photos, and the witnesses' identification cards. Attach the photos to the copies upper right corners.

4.    Schedule an appointment online, pay the e-registration fees, and get your receipt.

5.    Finally, you can bring the necessary paperwork and witnesses to your local e-sub registrar at this point, and the official will take care of the rest. You will be given a receipt, and the following day, you can pick up your registered will based on the receipt.

Process of Registration of Will in Haryana:

1.    For the property and other assets, create a will. For drafting, it is advisable to speak with an advocate.

2.    Schedule an appointment for the registration with the registrar's (Tehsildar/Sub-Tehsildar) office once the draft is complete.

3.    Go to the registering office on the scheduled date with two trustworthy witnesses and wait for your turn.

4.    On the scheduled time slot, follow the process in accordance with the authorities' instructions.

5.    One must pay the registration fees in accordance with the laws of the relevant state in order to register a will. Hence, pay as necessary.

6.    The registrar will sign the relevant order after personally confirming the information.

7.    To complete the registration, the testator or testatrix must sign the registry and the paperwork at the designated areas with witnesses.

8.    In one week, the registered copy can be picked up. The dispatch desk employee will provide you instructions on how to obtain the document and will also speculate as to when it might be ready.

Hirday Punjani

(Advocate)

References:

https://www.ey.com/en_in/tax/india-tax-insights/why-framing-a-will-is-important

https://ssrana.in/articles/will-and-nominee-india/

https://blog.finology.in/Legal-news/WILL-its-Importance-and-Essentials

https://ssrana.in/articles/probate-letter-of-administration-succession-certificate/