This is part 2 of the article on Understanding WILL. In the previous article, we discussed the legal terms & their meaning. In this article let’s take the discussion further. We will answer the common question arising before & during the will-making process.

Here are the FAQs on Understanding Will Making Process

Who can write a Will?

A person who has assets and desires those assets to be inherited by certain specific persons can write a will.
He / She should be a Major i.e. 18 years of age or more
Should have a sound disposing mind;
Should not otherwise be debarred from making a Will by any competent authority.

Why should anyone write a Will?

A Will is the best way for you to ensure the distribution of your assets to the beneficiaries, whom you desire the assets to be given, including the extent thereof.
It is not about the value of assets you have, it is to ensure that your assets are passed on to your next generation/beneficiaries hassle-free.
A Will can also be used to appoint a guardian to look after children until they attain maturity or age of 18 years. In case the child/children is/are mentally unstable, the guardian needs to be appointed even if the child/children is/are above 18 years of age.
A Will also allows you to choose a person to manage the distribution of your assets. This person is called the Executor.
A Will eliminates/reduces the intervention of judicial process / third party intervention for the distribution of the assets upon the demise of the Testator.

What if one dies without making a Will?

If one dies without making a Will, then he is called as have died ‘Intestate’ i.e. without leaving behind a Will. In this case his estate will be distributed amongst the family members as per the personal / state law of the deceased intestate. In this process, all the legal heirs (Class 1 & Class 2) may get a share in the assets of the deceased, without any regard to the real intentions of the deceased about including or excluding any of the family members or friends. A Will obstructs the natural flow of succession so that assets are inherited as per the wishes of the person (Testator).

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What all assets can be covered under the Will?

All movable as well as immovable assets including Real Estate, Fixed Deposits, Money in Bank Account(s) Securities, Bonds, proceedings of Insurance Policies, Retirement benefits, Art, precious metals (Gold, Silver etc.), Brands, Goodwill, digital assets (photographs, sketches, blogs, websites, email accounts such as gmail, yahoo etc. and with social websites such as Facebook, Twitter etc.) and Intellectual Property Rights etc. including what they are and the method and manner of their storage, can be covered under the Will.

In short, any assets that the Testator has in his ownership, at the time of his death can be included and distributed as per the desire of the person.

Who all can be included as beneficiaries to the Will?

All the Testator’s loved ones who may include the Testator’s spouse, children, step-children, parents, grandparents, grandchildren, friends, relatives, and/or any institution like School/s, Temple/s, Community Trust/s, Charitable Trust/s, etc. to whom the Testator wishes to pass on any benefit can be included as the beneficiary/ies in the Will document.

If one has already done the nomination for his assets, is he still required to write Will?

A Nominee is a Trustee (or custodian) as per law. The nominee is entitled to receive the assets of the deceased. While in the case of securities, the property vests in the Nominee in terms of the provisions of the Companies Act, in the case of other assets the Nominee may or may not be the Beneficiary.

To avoid disputes, it is advisable to write a Will in order to make a comprehensive note of all the assets as well as providing a clear indication about the allocation of assets to the beneficiaries. It reduces the hassle of paperwork for beneficiaries / legal heirs and avoids the instance of any future dispute over the assets. It is also advisable to make a nomination of securities in accordance with the Will document.

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Both, Nomination and Will are very important. Transfer of assets to the Nominee gives discharge to the creditor/custodian. For e.g.: in the case of a Bank where it is the creditor/custodian of fixed deposits made by the Testator, upon release of the FD to the Nominee, the Bank shall stand discharged.

Is Will required to be printed on a stamp paper?

No; the Will can be written on plain paper of any convenient size. It is also not necessary that Will has to be written on legal size paper.

In addition, the Will can be hand written and is not necessary to be in typed form. However, for clear legibility and avoid any ambiguity arising due to hand writing, typing in a font size which is naturally readable, is recommended.

Who can be a witness to the Will? How many witnesses are required?

Witness to the Will can be anyone who is / are above 18 years of age and of sound mind and capable to enter into a Contract. It is recommended that the beneficiary/ies should not be the witness to the Will.

There should be minimum 02 (Two) witnesses to the Will.

What are the options available to ensure that the Will is not disputed?

When you think that the Will written by you is likely to be challenged by any person, the Testator may like to exercise the following additional precautions:

A Will should be prepared through a trusted Advisor.
The Will is witnessed by 2 (two) witnesses as per law.
The choice of the witnesses should be good and credible.
Process of the writing, executing and witnessing the Will is duly video graphed. A video recording of the Will is admissible by way of evidence.
The Will may be registered with the Sub-Registrar of Assurances.

Is it mandatory to register the Will? What is the stamp duty payable on Registration of the Will?

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Registration of a Will is not mandatory. However, it is advisable to register the Will at the Sub Registrar office to add to its authenticity.

There is no stamp duty payable on Registration of the Will. However, applicable registration charges have to be paid, in addition to any legal services fees for registration of the Will document.