A Will is one of the most important legal documents a person can create during their lifetime. Yet It is also one of the most overlooked. A Will ensures that your property and assets are distributed according to your wishes after you die. If you do not have a will, the law will dictate how your Estate is divided, which may not be what you would have wanted. 

In case of demise of the male member without a valid Will, i.e. intestate, his assets/ estate firstly devolves upon his immediate heirs, i.e. Class-I heirs. Amongst Class-I heirs, assets will be divided equally among the widow, mother, daughter and son.

In the event there are no Class-I heirs, the assets devolve upon other heirs, in the following order of priority:

• Class-II heirs – Examples are father, son’s daughter’s son, son’s daughter’s daughter, and so on;
• Agnates – A relative whose connection is traceable exclusively through males (for example, a cousin from the father’s side); and
• Cognates – A relative whose connection is traceable, not wholly through males (for example, a cousin from the mother’s side).

Making a will is simple and inexpensive, so there is no excuse not to do it. The young and the old alike can make a Will. The earlier you make a Will, the better it is. You can also amend your Will when you acquire new belongings or assets.

In addition, a will can help to avoid conflict among your loved ones. By clearly stating your final wishes, you can avoid leaving behind a mess for others to sort out. By planning, you can ensure that your family is taken care of financially and have the resources they need to live comfortably.

What is a Will?

As per the Indian Succession Act, 1952, a Will is a legal document prepared by any person that has directions relating to the distribution of his/her assets and possessions and details of guardianship for the dependents of their family. 

The Will will be considered the final wish of a person regarding their possessions (whether to be allocated among family and/or outsiders, donated to a charity, etc.) as well as his directives for tasks to be performed after his/her death. 

Elements of a valid Will

1. The testator is the person writing the Will. The Will needs to include a clear intention of making the Will, a detailed list of their assets, and details regarding guardianship of their minor dependents. The testator needs to be of sound mind and should be free of any coercion or influence for the validity of the Will.
2. The Executor is the person (usually a lawyer) responsible for executing the Will after the testator’s death. 
3. The Will must be duly dated and signed to ensure that the lastest Will at the time of the testator’s death is executed. 
4. A will should contain the beneficiary’s details with clarity to avoid confusion. 
5. The Will must be signed in the presence of at least two witnesses. Witnesses cannot be beneficiaries of the Will for it to be accurate and have no scope to be contested. In an ideal scenario, an independent doctor and lawyer are preferred as they can testify for the free will of the testator and him/her being of sound mind.

Does a will need to be registered?

One can draft a Will on any paper, provided it has all the essentials of a valid Will. However, to avoid any disputes or contesting of the Will, it is better to register your Last Will or Testament with a Sub-Registrar. The testator and Executor must visit the sub-registrar office with two witnesses for registration. 

Can a registered Will be challenged in court? 

Registering a Will does not provide it legal sanctity or remove suspicion about its validity; even a valid Will can be contested in court. It would be best if you did it anyway, as it has greater authenticity than a non-registered Will and significantly reduces the grounds on which it can be challenged. 

Why is it essential to make a will?

Having a valid will is not common in India. However, getting one drafted in time and registered is always beneficial to ensure that after one’s death, there are no hassles for their family members. 

For the protection of family

By drafting and registering a will, one can have peace of mind as their family will be better protected after their demise. A Will clearly outlines all the assets and their distribution among family members and directions for guardianship in case there are minors. It helps the family cope with the financial loss of their family member while dealing with the emotional one. 

To avoid legal disputes between survivors.

Often the survivors of the deceased have disputes among them regarding their share and directions to use or dispose of the family property. With a valid Will in hand, all such conflicts can be avoided as the Last Will or the testament of the deceased will hold the highest value and legality relating to the discharge of the properties. 

Way to disinherit family members 

The deceased can also use a Will to weed out family members from his inheritance and not give them any benefit of their Estate. Though such family members may contest the Will if it is not registered or if they prove that while writing the Will, the testator was not in a state of sound mind or was under coercion. 

Guidelines regarding guardians for children 

Due to the pandemic, many children lost their parents and are left to fend for themselves. Under these circumstances, a detailed Will with guidelines regarding the guardians for the dependents can be a lifesaver. The deceased can set up a trust or a fund supervised by the guardian and secure the dependents’ education and financial future.

The family can have details of the entire estate/assets of the deceased. 

It is often observed in Indian families that the head is the only person with knowledge of the entire family’s assets and investments. In such a scenario, the sudden demise of such a member can put the family in a mess, and they may not be aware of all the family fortunes. A will can guide the deceased’s family and help them have all the details of the family assets and their valuation. This helps them make sound financial decisions for the betterment of the whole family. 

Can a will be altered?

Yes, a Will can be revised multiple times by the testator provided he/she is of sound mind and not under coercion. Also, each alteration needs to have been signed with an authentic signature. If significant changes have been made throughout various stages during one’s life cycle, like marriage proposals or retirement plans, you would require a new Will altogether since old ones won’t apply anymore once you’re gone!.

If I have nominees, do I require a will? 

Yes, a Will overrides nomination. A nominee of immovable property is only a trustee until the court decides who is entitled to the property per succession laws. 

Where should I keep the Will?

The testator should keep the Will where it can be easily found, such as in the cupboard, and a copy of the Will should be kept with the legal advisors. 

Conclusion

 It is not common for people in India to have Wills, but without a Will, you could be leaving your family financially vulnerable.

Many people don’t see the point because they think it’ll only create complications and add more stress to an already emotional situation. But if you die without one – when just having this document can protect your family from opportunistic individuals.