Guidelines

 

Various words and phrases used in the Guidelines are defined in the 'Definitions' section of FAQ. Please refer www.ezeewill.com/faqs.html.

A “Will” Document or Testament is a legal declaration by which a person, also known as the Testator (a person who prepares a “Will” is known as Testator), declares his / her wish about distribution of his property after his / her death. This is a kind of smooth succession planning for the wealth of any individual, to ensure that after his / her demise, the legal heirs get their share without any hassle as well avoidance of heart burns amongst them.

By considering to write a Will, you have given the evidence that you have understood the importance of the succession planning and you sincerely feel the need to provide appropriate direction to ensure distribution of your hard-earned wealth, as per your wish. We bring these guidelines which we believe will provide you with certain necessary and important information which will be helpful to you for Will preparation.


For a Will to be valid, the testator must:-

  • must be an adult (of or above 18 years of age);
  • act of his own free wish / Will without fraud, coercion or undue influence;
  • be of sound mind;
  • ensure that the movable / immovable properties / assets stated in the Will are:

    (i)

    (ii)

    (iii)

    (iv)

  • the Will must be in writing, i.e. in one’s own handwriting or typed;
  • must be on plain paper;
  • the Will must be dated;
  • the Will must be simple, clear and precise to read and to understand;
  • the Will must be serially numbered;
  • name at least one executor to dispose the Will which is advisable, though not compulsory;
  • name each beneficiary who shall benefit under the Will;
  • affix his / her full signature at the end of each page and next to any correction and alteration in the Will;
  • sign at the end of the Will, or affix with his mark / thumbprint [left hand thumbprint for men and right hand thumbprint for women] as guided by someone in the presence and on direction of the testator;
  • the signature of the testator must be written or acknowledged in the presence of two witnesses, both not necessarily present at the same time, who can confirm the execution of the Will if the need arises at a later date;
  • corrections / amendments in the Will must be countersigned by the testator and both the witnesses;
  • the witnesses must not be beneficiaries or the testator in the Will;
  • the witnesses must sign the Will in the presence of the testator, but not necessarily in each other’s presence;
  • the witnesses must indicate in the Will their full names and addresses alongwith PAN for identity proof / registration number in case of professionals;
  • though not compulsory, it is advisable that the executed Will may be registered to increase the genuineness of the Will; else,
  • the executed Will may be kept in the bank vault, and the executor(s) and / or the beneficiaries must be informed where the executed Will is kept; OR, - the executed Will may be kept with the advocate and photocopies of the Will be kept at different places or with different people if it could be misplaced;
  • In case of change in personal circumstances and / or changes in the property / assets, appropriate amendments should be made in the Will, either by way of a Codicil or a new Will; else,
  • a new Will should be prepared and executed revoking all previous Wills and writings.

For a Will, to captures all the Assets Details, the testator, must:-

  • mention all and give description of movable / immovable properties / assets held and owned in India;
  • for assets held and owned outside India, a separate Will is recommended;
  • mention bank saving accounts, fixed deposits, provident funds, postal investments, mutual funds, share certificates, insurance, jewelry / ornaments, hard gold and silver etc. (both movable and immovable) owned;
  • name a guardian for minor children and mentally incapacitated beneficiaries who are of unsound mind or are otherwise disabled, while giving complete personal details of the proposed guardian;
  • make proper provisions for the amount left to the surviving spouse and to all the children;
  • mention the number of children, the children’s spouses and children (if any);
  • mention the ages and positions in life of the children, the children’s spouses and children (if any);
  • make proper provision for a bequest to other beneficiaries;
  • make proper provision if the beneficiary or any of the beneficiaries dies first;

A blind person can make a Will, provided a sworn affidavit is made by one of the witnesses, confirming the same.

It is advisable to obtain a certificate, confirming on the mental capacity of the testator to make a Will, from a doctor (with his / her registration number and educational qualification / degree) attending to the testator should be affixed to the Will.


The testator must NOT:-

  • make a Will without free wish / Will due to fraud, coercion or undue influence;
  • bequeath any ancestral property / assets not earned and owned by him, unless such property or a share in such property has devolved upon him / her;
  • bequeath any property / assets jointly held, though the testator can Will his share;
  • bequest made to create perpetuity;
  • bequest based on illegal or immoral condition;
  • bequest which is contrary, forbidden, defeats any provision of law or is opposed to public policy;
  • affix his sign or mark on top of the page of the Will;
  • make a feeble signature or mark;
  • have only one witness;
  • not name an Executor to the Will.

Some Important Points to be taken care while preparing a Will:-

Simply put, Will is a formal legal document setting out how a person wishes to dispose and distribute his property on death. Such disposal of property can come into effect only after the death of the testator.

In the case of an illiterate or severely disabled / incapacitated testator, he may execute the Will by a thumb mark - if male his left hand thumb impression and if female her right hand thumb impression shall suffice to execute the Will.

An attesting witness shall sign the Will for the purpose of testifying the signature of the testator. Thus, an attesting witness must not sign before the testator has put his mark on the Will.

It is not necessary that the testator have to sign in the presence of the witnesses. It is necessary that both the witnesses must sign in the presence of the testator. It is not necessary that both the witnesses have to sign at the same time and they should know the contents of the Will.

A Muslim is not required to have his Will attested if it is in writing.

A witness under Hindu law can be a legatee / beneficiary, but a witness under Parsi and Christian law cannot be an executor or a legatee / beneficiary.

The grant of probate to the Executor however does not confer upon him any title to the property of the testator.

testator can make as many Wills as he wishes, but the only relevant one is the last valid Will made before his death.

If more than one Will is in existence then the one having the latest date will nullify all other Wills.

A person is said to have died intestate if he does not leave behind a Will.


Applicable Provisions:

  • The Indian Succession Act, 1925;
  • Hindu Personal Laws;
  • Muslim Personal Laws;
  • The Indian Registration Act, 1908.

Assumptions

  • The testator is an adult (above 18 years), Indian citizen, having permanent and correspondence address in India.
  • The testator is acting out of his / her free wish to prepare the Will.
  • The immovable properties / assets stated in the Will are situated in India and in the testator’s own name.
  • The immovable properties / assets in the Will are in the testator’s own name and not jointly held, and if jointly held then only his share can be mentioned in the Will.
  • In case of ancestral property / assets, those have rightfully devolved upon the testator as his rightful legal share in the ancestral property / assets and are situated in India.
  • The testator, upon his death, wishes to dispose and distribute his property and assets situated in India and as set out in the Will.
  • testator can make as many Wills as he / she wishes, but the only relevant one is the last valid Will made before his / her death.
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