Making a Will

What is a Will?

If you want to make a legal declaration with respect to your assets or property, you can do so making a will (Section 2 of The Indian-Succession Act 1925). This document takes effect after your death. As the person making the will, you will be called the ‘testator’.

Why should I make a will?

Depending on your religion, there are different rules with respect to how your assets and property will be distributed after your death. However, if you make a will, your assets and property will be distributed among the people of your choosing and the specific religious rules do not generally apply.

As a Hindu person, the rules of inheritance under a law known as the The Hindu Succession Act, 1956, are applicable.

Similarly as a Muslim, the rules applicable to inheritance will be according to Muslim personal law (unless you are married under the law on civil marriages). If Muslim personal law becomes applicable, you cannot distribute your entire property to people who are not your legal heirs. You can only will away one-third of your property to someone else and the remaining two-third has to be distributed among your legal heirs.

Can anyone make a will? When should I make a will?

If you are a:

• person of sound mind, and
• more than 18 years of age

you can make a will (Section 59 of The Indian-Succession Act 1925).

The idea here is that a person making the will should be aware of what s/he is doing.

Illustratively, a person with mental disabilities can also make a will when s/he is aware of what s/he is undertaking. If a person is under the influence of alcohol and does not know what s/he is doing, then s/he cannot make a will.

You can make a will at any point of time during your lifetime. However, you should be 18 years or above of age (or a ‘major’ in legal terms) when you are making a will.

Is it important to sign the will? Should there be witnesses?

Yes you should. (Section 63 of The Indian-Succession Act 1925). sign or put your thumb impression on the the will. You can also direct someone else to sign your will in your presence.

While signing or putting your thumb impression, you should make sure that there are two witnesses present. A witness is a person who has actually seen you sign the will.

It is also important that both witnesses sign the will or put their thumb-impression in your presence (Section 63 of The Indian-Succession Act 1925).

There is no prescribed format or prescribed place for this attestation. Anyone can be a witness to your will - including the executor.

Who is an executor? Can anyone be appointed as an executor?

The person to whom you give the duty of carrying out the instructions given in your will, after your death, is called the executor of the will (Section 2 of The Indian-Succession Act 1925).

You can appoint any person who is of sound mind and who is above 18 years of age to be appointed as an executor. You must choose a person in whom you have full confidence and who is willing and capable of acting as the executor.

While choosing who should be the executor, please keep in mind the following:

• The executor should ideally be younger to you , so that h or she can outlive you;
• The executor should preferably be from a nearby place so that he can facilitate and obtain the probate;
• The executor should preferably be known to the beneficiaries of your will;
• The executor should be honest, faithful and a person of integrity.

Can I change my will after I’ve already signed and attested it?

Yes, you can change your will as many times as you want. It is possible to make changes to your will even if it’s been registered.

Ideally, if you are making substantive changes to a will in order to convey your wishes properly, you should execute a codicil. A codicil is a written statement which supplements or modifies an existing will (Section 2 of The Indian Succession Act 1925). It must be executed in the same manner as that of the original will.

You can also make changes by deleting, modifying or inserting new language in a will, you should (Section 71 of The Indian Succession Act 1925) sign and get the signature of the witnesses in the margins near the changes or at the end of the will by making a reference to the changes. No other changes can be made to an already executed will (unless it has been made to make it clear or legible).

Is it possible to later undo or cancel my will?

Yes, you can undo or cancel your will in the following ways (Section 70 of The Indian Succession Act 1925):

• By making another will or any document which is executed in the same way as a will;
• By burning, tearing or destroying the will or directing another person to do this in your presence.

What can I give away in a will?

You can give away all of your property over which you have complete ownership. Even as a Hindu woman, you can will away any property in which you have complete ownership (Section 14 of The Hindu Succession Act 1956).

You cannot will away any property in which you have only life interest - such properties which cannot be sold or parted with can also not be willed. For example, if you have acquired interest in some property during your lifetime through a will made by your spouse (you only have a life interest and not ownership), you cannot then will away this property.

You may include any movable or immovable property which you have acquired by yourself. If you are a member of a Hindu joint family, you can in the ancestral property only will away your interest. (Section 30 of The Hindu Succession Act 1956)

Source: Nyaaya