Understand the Nuances of Writing the Will

Will is a very vital document that is legally prepared and states the intentions of its maker for the distribution of his assets and wealth after his death. The person who makes a Will is called the "testator", and the person in whose favour the Will is executed is named the "beneficiary" or the "recipient". A Will is made when the testator wants to bequeath his property to the person he chooses and to the extent he chooses, but only after his death, for ownership or enjoyment of a lifetime or a limited period. It is also essential to make a Will to ensure that there are no disputes amongst his surviving legal heirs after the demise of the testator. Any person writing a Will falls under the Testamentary succession. Sometimes the testator also mentions an "executor" in the Will, whose primary duty is to ensure that the Will is executed as written by the testator word to word. A person can make a Will multiple times before his death; however, the testator's last Will prevails. 

Any person can make a Will provided he/she:

  1. is a major.

  2. is of sound mind.

  3. has made the Will free from fraud, coercion or undue influence.

There can be scenarios when a person dies intestate (without Will), leaving his properties behind then as per the law, the properties are devolved upon his surviving legal heirs based on natural succession, as per the succession laws applicable.

One should be very careful while drafting or writing a Will and, thereafter in executing the same. It is always advisable to take legal guidance before writing a Will to get all the lacunas covered. 

The following vital points have to be kept in mind while writing a Will:

  1. One should always ensure that the full details of the testator, like legal name, age, residence etc., is mentioned in the Will. The testator should be of legal age. 

  2. The Will must be voluntarily made by the testator, i.e., out of his free will. He should also be of sound mind while making the same.

  3. The complete details, such as legal name, age, residence etc., of the beneficiary to whom the property is bequeathed should be mentioned. 

  4. One must ensure that the details of all the legal heirs should be mentioned in the Will, and if the testator is specifically excluding any of his legal heirs, he/she should specify the reason for the same.

  5. A Will should specify the list of all the properties owned by the testator, which are to be fully described in the schedule annexed to the Will. A schedule should contain the total extent, boundaries, type of land and location of all the properties. 

  6. The name of the executor, if any, along with the complete details like his age, residence, should be mentioned clearly and the relationship of the executor with the testator.

  7. It is always suggested to specify the following statements while writing a Will: 

  • “The property of the testator is being bequeathed with free will and volition and sound state of mind”.

  • This is the last Will executed by the testator.

  1. It should be specifically mentioned in the Will that it shall come into force after the testator is deceased and the Will is revocable as per the wishes of the testator at any time.

  2. While writing a Will, it must be ensured that the testator's signature, along with the date and place of the execution of the Will, is a must and should be specified in the Will. There are two witnesses as well mentioned in the Will in the presence of whom the document is executed and registered. The witnesses should also put their signatures and complete addresses.

  3. Lastly, the Will should be registered through the registrar of the respective jurisdiction where it is being executed; however, it is not mandated. A registered Will is always preferred over an unregistered Will. Though the latter is valid but the former is more effective in case of a contest, before a Court of law. 

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Merely, writing a Will is not just enough one should also make appropriate arrangements for its safekeeping. Getting a Will registered definitely, is one way of ensuring its safety; after that, the registered Will should also be kept in safe custody not to be tampered with, destroyed, lost or stolen. One can also keep a copy of his Will with the primary beneficiary or the executor.

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