There are serious consequences if someone dies without a valid. Will is a very effective tool for planning your succession. But when it comes to writing of will, it is general belief that it is a very difficult and complicated task. This is not true, writing a proper will is a simple task but it should be done with the help of a legal expert so as to avoid any mistakes. Let us understand basic things about will through this article so as to avoid such mistakes and get prepared for a proper will.

What is will?

Will according to Indian Succession Act, 1925 is “The legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death.” Testator is a person who is writing will for his property. So through will a person puts his wish regarding how he wants to distribute his property after his death.

Who can make a will?

Every person of a sound mind, not being minor can dispose of his property by will. A person who is in a state of mind arising from intoxication or from illness or from any other cause such that he does not know what he is doing cannot make his will. Even persons who are deaf or dumb or blind can make will provided they are aware what they are doing.

What are the Essential Clauses of a Will

Following are essential clauses of a ‘will’ which one should always put while writing the ‘will’.

• Name: The name and description like age, religion, community etc. of the testator.
• Revocation of earlier Wills: A declaration that the present Will is his last Will and testament and that he revokes all other earlier Wills, codicils.
• Appointment of Executors: An executor is a person named by the testator in the Will to whom the testator has confided the execution of Will. If legacy or bequest is given to executor it should be mentioned in the Will that he would be entitled to legacy even if he does not accept to act as the executor of the Will unless there is any contrary intention.
• Direction to pay dues: If any.
• Legacies and Bequest: This is important clause in the Will, because under these clauses the testator makes the disposition of his property. He can make requests to future person also.
• Residue Clause: It is always advisable to have Residue Clause disposing of the residue [i.e., remaining property belonging to the testator at the time of the death which is not specifically disposed] of the testator’s property. If there is no residue clause such remaining property Will go to the legal heir of the testator. Even the legacy which lapse go back to intestacy if there is no residue clause.
• Testimonium Clause: The testimonium clause is as “in witness whereof I said__________have hereunto set and subscribed my hand at _______on this __day of ____20__.”
• Execution Clause: This is the last clause of the Will which begins with “Signed and acknowledged by the within named Testator as his last Will and Testament”. The Testator should sign the execution clause in the presence of two witnesses who should also subscribe their signatures as witness in the presence of the Testator.

Best Practices about Witnesses

• Minimum two witnesses are required too prove validity of your will.
• Try to have witnesses which are younger than you, Reliable, with sound status and firm.
• Witness should not be directly or indirectly beneficiary in your will. If in any way witness is directly or indirectly beneficiary or interested party in your will, validity of your will can be challenged easily.
• Witness need not to read your will or know about contents. They just need to acknowledge that you have signed will in a sound mental and physical condition and with your wish and not under any pressure.
• In case where witness dies during your life time, it is advisable to execute fresh will with new witnesses.

Other Important points one should keep in mind

• No Specific Legal language required : For preparing your will no specific legal language is required. As far as possible use simple and clear words. Try to use language which is best understood by the Testator.
• No Stamping Required: Stamping of will is not required. There is no need to write your will on stamp paper.
• Registration not Mandatory: Registration of will is not mandatory. However, it is advisable to register your will.
• Revocation of Will: A will can be revoked during life time of the Testator. Will is an instrument which comes into effect only after death so during your life time you can revoke the will.
• Avoid Alterations: Try to avoid any alterations in will. For any alterations they should be executed in the same manner as a will and attested by two attesting witnesses.
• Single Copy of will:  Execute only a single copy of will to avoid confusion and disputes in future dates.
• Doctors Attestation : Over and above two witnesses try to have a doctor to give attestation  in your will that “ I have examined the testator and found him in sound disposing mind and as having fully understood the contents of this will.”
• Appointment of Executor : Executor is the person to whom the execution of the last will of the deceased person, is by testators (person who is writing the will) appointment, confined. Executor can be the beneficiary in will, so you can also appoint one of the beneficiaries as executor.

To conclude, It is not very difficult to write a clear and effective will. One should keep above mentioned points in mind and preferably take help of an expert.  While writing the will, one should maintain simplicity and clarity of the language to avoid any kind of confusions after his death. 

 

Authored by,

 

Prakash Lohana

Chief Financial Planner

Ascent Financial Solutions Pvt. Ltd.

Vadodara

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