A will or testament is a legal declaration which authorizes the testator to name the people who would inherit his estate after his death. He can specify his intentions which he wishes to be fulfilled after his death and clarify all confusion regarding the distribution of his property. A will once made can be revoked by the testator only during his lifetime. It cannot be changed or disregarded after the event of his demise and thus it is the best way to dispose off one’s property. However one thing has to be kept in mind. A testator can only make declarations regarding his self acquired property by way of a will. He cannot give away the joint family property or any other property not solely belonging to him.
STATUTORY BACKDROP OF A WILL:
The Indian Succession Act applies to all religious communities across the board. This act however does not apply to Muslims who are governed by their personal laws. The Indian Succession Act, 1925 (S. 5) deals with both intestate and testamentary succession. When a person dies by leaving behind a will it is known as testamentary succession. S. 2(h) of the act defines the term ‘will’ as a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
WHO CAN MAKE A WILL?
Any individual who has attained majority and is of sound mind can make a will. In India, a person attains majority at the age of 18 years. This is governed by the Indian Majority Act, 1875. A person of unsound mind can also make a valid will if it is made during his lucid interval. A will made by a minor is void even though a testamentary guardian can dispose off his property. One must be wondering as to whom one can make the beneficiaries of a will. The answer to this question is very simple. S. 112-117 of the Indian Succession Act states that any person who can hold property can be a beneficiary of a will. Thus a minor, a person of unsound mind, a juristic person, a corporation, etc can be a legatee.
WHY SHOULD ONE MAKE A WILL?
Writing a will is considered to be a huge hassle as a result of which many people prefer to die intestate. However a will is of immense importance. Let me illustrate this with a simple example. Mr India has three sons Goa, Assam and Punjab. He is extremely close to Goa but is not at all fond of Assam and Punjab. He feels that making a will is an extremely difficult process and hence he decides to not make one. One day, he dies suddenly. His property is divided into three equal parts among the three sons even though Mr India would have loved the entire property to go to Goa. Thus we see the importance of a will. I shall point out 10 reasons as to why every person should have a will of their own.
1) The most important thing about a will is that it leaves comprehensible and explicit instructions about the deceased’s property and estate.
2) A will specifies the inheritor of each share of the property and lessens the scope of any confusion that might arise in future. It therefore helps in mitigating family disputes.
3) A will lets one choose those people whom one would like to inherit their property after their death. In case one dies intestate, the property devolves by intestate succession under the Hindu Succession Act and those people whom one might not like may also inherit the property.
4) A person making a will creates a safety garb for his minor children. He can appoint a guardian of his choice and also make any financial arrangements for them.
5) A will can be instrumental in protecting one’s business. One can pass on their company and power of attorney to one’s preferred heirs thereby reducing friction in business ventures.
6) In case of remarriage, a will helps one to ensure that the children from the first marriage are not left out from inheritance in any manner.
7) Wills may not only specify the inheritance in favour of friends and family members but may also include a charity or any other organisation.
8) The best thing about a will is that it is not an irrevocable instrument. A will can be revoked during the lifetime of the testator. A will can also be modified. If circumstances change and the testator become dissatisfied with the behaviour of any of his relatives, he can exclude his name from his will.
9) If a person dies intestate then laws of inheritance and succession apply. Such laws are extremely complicated and difficult to interpret. They are vague like any other personal laws and people interpret it according to their own interests. This results in a lot of family feuds with respect to the deceased’s property. To add to it all, these laws vary among people of different religion.
10) Another advantage of will is that one can make one’s own will. There is no legal requirement to get a will made by a lawyer. Thus the pain of visiting the lawyer everyday can be done away with.
A will is so important that it should be the first step taken towards financial matters. It should be clearly written so that the intention of the testator is brought out unequivocally. One should not shy away from writing a will in fear of complicacy. Shankar Pai, the founder of Make a Will Foundation had once said that people are very reluctant to bring up the topic of will. They either feel that the person asking about the will is hinting towards their imminent death or is eyeing their property. Such inhibitions should be done away with and making a will should be every individual’s New Year resolution.
This article has been written by Arpita Sengupta