This article has been written by Sonali Khatri. She is practicing before the High Court of Rajasthan at Jaipur Bench. She can be reached at [email protected].

You are getting old. You do not believe in death happening at a particular age. But it’s not the idea of death which scares you. What really scares you is this: what would happen to your property after your death?

You do not want your children to fight for your property after your death. You want to make sure that your family does not collapse because of property disputes.

Hence, you have decided that you would write your Will before things go worse, before you fall to your death bed, before a health crisis occurs in your life, before it gets too late.  

But. But. But. You really have no idea as to how you can write your own Will. You really do not know how to make a legally valid Will. 

Don’t worry. This article of mine would answer all your probable queries. It would make you capable of writing your own Will. Read it out and help yourself.

Can I write my Will on a plain piece of paper?

Yes. You can write your Will on a plain piece of paper. You do not need a stamp paper or any other legal paper for writing your Will. 

How important is the language?

If the Will is written in a language which is understood by an ordinary man, then would it be alright as per Indian Laws?

Yes, definitely. It would be perfectly fine under the Indian Laws. As long as your words are clearly reflecting your intentions, there is no problem in writing in an ordinary language. You can confirm this from Section 74 of the Indian Succession Act, 1925. 

If, in the Will, I specify clearly as to how I wish to distribute/divide my property, then would that be sufficient as per Indian Laws?

Yes, if you clearly specify all the properties and the heirs on whom your properties shall pass upon, then that would be sufficient as per Indian Laws. 

How can it be done?

It can be done in the following way:

1. Make a list of each of your movable and immovable property over which you have title, interest and possession.
2. Write down the monetary value of each and every such property.
3. Thereafter, make a list of every such person who should get a share in the abovementioned list of properties. (Basically, every such person whom you feel should get a share in your property.)
4. Now, the last step. Make a table like this. 

Person	What should each person get?
X	Property A
Y	Property B
Z	Property C

The thumb rule is to be very specific and detailed about the property, testator (i.e. You) and the heirs. 

If you want to know the steps in detail, then you can take help from this article. 

Apart from this, what else do I need to write in the Will?

Besides the above, you should consider writing the following things in your Will:

1. If you have minor children to whom you want the property to pass on, then appoint someone as guardian of the minors. Clearly mention it in your Will. This would help your minor children enjoy the benefits of the property without any interference of the Court. If you fail to do this, then the Court would definitely interfere.
2. You can also consider making the following declarations in the beginning of your Will:
   • That you were of sound mind at the time of drafting the Will.
   • That you were not minor at the time of drafting the Will.
   • That you were aware of what you were doing at the time of drafting the Will. 
   • That you have made the Will without there being any pressure of any kind. 

If you want to gather more information on this, then please read this article. 

•  You can also consider making the following declarations in the end of the Will:

1. That the witnesses have signed the Will in front of you.
2. Similarly, the witnesses must declare that you have signed in front of them. 

Should the Will be drafted in English language only? Can I draft it in any language in which I am convenient?

No. It is not mandatory that the Will should be drafted in English language only. Under the law, there is no bar on writing the Will in a language in which you are convenient. You can confirm this from Section 277 of the Indian Succession Act, 1925.

How important is the presence of lawyers?

Is a lawyer really needed at the time when I am drafting the Will?

No. You can draft the Will without the help of a lawyer. However, in such a case, you should gather all the relevant information from the right sources before proceeding to act on your own. A poorly drafted Will would create more problems than drafting no Will at all. 

In the absence of a lawyer, what should I keep in mind at the time of drafting the Will?

1. You should read the relevant portions of the Indian Succession Act, 1925 to get a sense of how legally valid Wills can be drafted.
2. Additionally, read other reliable information available on the internet (or through your own sources) to get more clarity on what exactly you should write in your Will. 
3. In light of the gathered information, you can draft the Will.
4. Before proceeding for signature and attestation, get it checked once from a lawyer (offline or online, it depends on you). This vetting by the lawyer would help in removal of all the probable errors in the Will. It would help in making your Will error free. Hence, please follow Step 4.

How important is the presence of Courts?

Is there any role of courts in the drafting of Will?

During the drafting of the Will, there is no role of the Courts. The role of the Court would come into picture after your death (i.e. after the death of the testator).

How important is the presence of witness/es?

Is the presence of witness/es mandatory at the time of drafting the Will?

No. The presence of witness/es is not mandatory at the time of drafting the Will. However, their presence would be required after the draft has been finalized and is ready for signature.

If yes, who are the people whom should I call for fulfilling the need of witness/es?

Indian Succession Act, 1925 does not answer this question. However, I deem it appropriate that you should consider the following points before choosing your witnesses:

1. The witnesses should be smart enough to understand and answer the queries of the court whenever the Will gets challenged before the court.
2. The witnesses should be relatively young and healthy so that they can outlive you. This is important because if they are not alive at the time of challenge to the Will, then execution of your Will would become really difficult.
3. The witnesses should not have any self-interest in your property. In case they are greedy persons, they would probably create problems during execution of the Will. 

How many such witnesses would be required for it?

As already stated, witness/es are not required at the time of drafting the Will. Rather, they are required for attestation. Two or more witness/es are sufficient for attestation. Information related to attestation has been covered in the next part.

How important is the signature and attestation?

If the Will is signed only by me, then what value would it have in the eyes of law?

1. If it has only your signature, then it would have no value in the eyes of law. However, it would be correct to say that your signature is super important. Before the Court of Law, your signature would play an important role in proving that the written document is indeed a Will and has been actually prepared by you. 
2. In case you are unable to sign, then you can affix some mark on the Will. You also have the option of authorizing someone else to sign. But that person should sign in your presence and as per your direction.
3. It is strongly advised that each page of the Will is signed (or mark affixed) by you in presence of the witnesses. 

Apart from me, does it need to be signed by anybody else?

Yes. It needs to be signed by two or more people (these are called ‘Witnesses’ under the law. I have explained enough about them in the previous part). They should sign the Will in your presence. 

If yes, who should be such people?

This question has already been answered in the earlier part of this article.

If yes, how many such people’s signatures would be required?

At least two persons’ signatures are required. 

Is the Will required to be attested as well?

Yes. It is required to be attested as well.

If yes, where do I go for that?

You need not go anywhere for attestation. 

How would attestation be done?

Attestation basically means that two or more persons should be there and see it when you are signing the Will. Hence, you need to do the following for attestation:

1. Getting two people before you decide to sign the Will.
2. Ensuring that these two people actually see it when you sign the Will.

How much would I have to pay for the attestation?

You need not pay anything for attestation.

How important is the location at the time of drafting of Will?

Your location cannot create any bearing (impact) upon the validity of your Will. You can draft your Will while being at your own room. It is not necessary to be in a Court or any other specific place for your Will to come into effect. You can read more about this from here. 

If I draft the Will in my room (and fulfill all the necessary requirements), thereafter keep it in my locker (or any place which I consider to be safe or handover it to someone whom I consider to be trustworthy), then would the Will come into force after my death?

Once your Will is ready (after signatures and attestation), then you can keep it in a place you consider to be safe (or give it to a person whom you consider to be trustworthy). Basically, you can hide about the existence of the Will from your family members. This act of yours may not affect the Will from coming into force. However, please do it with caution. 

Because of this act of yours, a lot of people (including your family members and relatives) might create problems in execution of this Will for various reasons (including but not limited to):

1. They might not be happy with the quantum of share that has been passed on to them by you.
2. They might not be happy about the fact that you did not inform them in advance about the Will thing.

In light of this, decide sensibly if you would still want to hide about the existence of Will from your family members. 

Note: In case you still have any question relating to the drafting process of Will, you can reach out to me at [email protected]. I would try to respond at the earliest.

Disclaimer

This article is based on the limited knowledge and experience of the author. It does not cover all the information which might be relevant for a person intending to draft a Will. The readers of this article are advised to verify the information contained in this article before proceeding to act/omit on the basis of the information in this article. The author shall not be responsible for any act or omission taken by the reader/s on the basis of information in this article.