The property of a person must go to the legal heirs in accordance with the applicable laws of inheritance. By making a Will, a person exercises discretion in who will be the legal heir, how much share in the estate each of the legal heirs will inherit and also exclude any legal heir completely (in certain exceptions).Salient Features of a Will
Will is a legal obstruction in inheritance of assets. By creating a Will we:
a. Choose the beneficiary – one over the other;
b. Ensure succession in an efficient manner
The making of a Will can be a simple process under professional guidance and involves the following general but significant aspects:
The Testator (a person who makes the Will) can appoint an executor in the Will. The Executors are bound to carry out the directions of the Will.
An executor is expected to distribute the assets of the deceased among the beneficiaries. Moreover, he is also authorised to collect and realise the estate of the deceased and pay the debts. The Executor is empowered to file a petition to obtain probate (proof) of Will from the court of law.
There are no specific guidelines to appoint the Executor. The appointment is solely on the Testator’s desire. One may note that any person who is appointed as an Executor may refuse to act as one. If he refuses to perform the required obligations, he cannot be forced to do so. The number of Executors can be more than one. And even a beneficiary can be appointed as the Executor. A lawyer, a firm of lawyers, or a company can be named as the Executor.
In case the Executor is incapable of acting or refuses to act as one, the Court appoints an Administrator at the instance of the interested persons/beneficiaries.
Beneficiary is a person who is named by the Testator in his Will to receive the benefits of the estate. A Testator has the capacity to give his/her property to any person. It is however, important to note that such bequeaths should be above suspicion. For example, in a case where the persons attesting as witnesses were not close enough to a Testator so as to enjoy his trust and these witnesses were not independent but interested in the beneficiary under the Will, the court held this to be a suspicious bequeath.Witnesses
There should be at least two witnesses to a will each of whom should have seen the Testator sign the Will. The witnesses should put their signatures in the presence of the Testator.Registration
Under the Indian Laws, the registration of the Will is not at all compulsory. It is an option on part of the Testator to register the Will. As far as the legality of the registered and unregistered Will is concerned, the genuineness is at par. However, the registration of the Will has a number of benefits. So it is advisable to have that done.
Any testator can execute a Will on a plain sheet of paper. After that he can have it registered with the concerned Registrar. The advantages of the registered Will are many. Once registered, the Will is neither lost nor can be destroyed or stolen or tampered with.
If the Will is unregistered, there may be assumptions and disputes about its genuineness. When the Testator goes for registration the Witnesses accompany him.
As per the practice and procedure, the Registrar examines the Will and obtains the signatures and thumb impressions of the Testator and witnesses. These establish the bona-fides of the document.
Since the Will is a privileged document, it cannot be examined by any person. During the lifetime of the Testator, the Will can be examined only with his consent. Only after the death of the Testator the certified copy of the Will, maintained with the office of Registrar can be given after producing the death certificate of the Testator.
In case the Will is required to be changed after registration, it is advisable that any changes in the registered Will are made only by way of a registered instrument by way of Will or Codicil (document amending an existing Will). From this point of view, registration of Will may be disadvantageous. That is since modification, if required, calls for registration all over again.Registration of will after death
There is a provision under the Registration Act, 1908, whereby the Will can be registered even after the Testator dies. Such a Will, once executed by the Testator, can be registered with the Registrar by the Executor or the beneficiaries. To do this, an application can be filed with the Registrar along with the original Will and the death certificate.
The Registrar is obliged to record the statement of the witnesses. After having satisfied himself about the authenticity, the official can register it.
Note: It is important to remember that our Courts have seen many legal battles due to improper making, execution and witnessing of Wills and these could have been easily avoided by seeking professional help. The experts advice the videography of the execution of a Will in the presence of a family doctor and a doctor’s certificate confirming the mental health of the testator at the time of executing a will.The author is Partner at the law firm, SNG & Partners.