Last Will – Property Transfer After Death

Last will property transfer

A will is a legal declaration a person makes about the way they want their property managed or distributed after their death. Although a will is a legal document, there isn’t any prescribed form it must take. For instance, you don’t need to write a will on stamp paper and it can be either typed or handwritten. However, a handwritten will is preferred as it is more difficult to refute. According to the Indian Succession Act of 1925, anyone who is of sound mind and who is not a minor can make a will.

Things You Should Know When Making A Will

Clarity – You have to clearly write the name, age, address, relationship of the beneficiary with you and any other details of the beneficiary and mention the full details of the property that you desire to give to the particular beneficiary. Mention the date clearly in words rather than numbers.

Integrity of the Document – Remember that once a property is given to one particular beneficiary, then you can’t allot the same to another beneficiary as a whole. In such instances where you want to give one property to many beneficiaries, you have to clearly draw the lines on how much share of that property goes to each beneficiary. Or if it is to be equally shared, then mention it clearly.

No Ambiguity – The words of the Will should never be ambiguous or confusing or meaningless. This can make the Will void with respect to that particular part which is meaningless or confusing.

No Handwritten Text in a Printed Will – Do not write in on a printed will. Put your signature just below the last line of the Will. Any text below the signature is treated as not a part of the Will and will be discarded. Hence your signature is very important and needs to be carefully placed.

Handwritten Will – Handwritten Wills are legally valid too. But never use different inks if your Will is handwritten, and never use different handwritings in the same document. All this leads to suspicion.

Last Will

What Should Be Included In The Will?

A Will should have the following necessary details:

  1. Testator Details – Name, age, address details of the person making the Will
  2. Beneficiary Details – In case of multiple beneficiaries, the details of each beneficiary like name, age, address, relationship of the beneficiary with the Testator.
  3. Property Details – The details of the properties which the testator wants to give to his beneficiaries under his Will like the description, the registration number, the date of registration and whether it is his self acquired property etc. If it is a movable property, then the details and description of each should be clearly and individually mentioned.
  4. Specific Assets – Any specific assets like jewelry or a golden utensil etc should be specifically described.
  5. Guardian for Minors – If the Testator wishes to give his property to any beneficiary who is a minor, then definitely he should appoint a guardian who will take care of the minor’s property till the minor attains majority.
  6. Executor of the Will – The Testator should appoint an Executor to his Will. An Executor is a person who shall implement the Will after the Testator’s death.
  7. Signature and Date – The Will should be clearly dated and signed by the Testator at the place in the document just below the last sentence in the document.

Exclusions – The Testator cannot give any property that is joint family property or ancestral property that is common to many other members too. Such a Will becomes void.

Initial each page: After this, the date and place must also be written at the bottom of the will. Every page of the will needs to be signed by you and your witnesses. Any correction made on the will must also be countersigned by you and the witnesses.

Storing the will: Make sure you store your will in a safe place. Copies, if made, should be stored separately from the original will.

Common Mistakes while Writing a Will

Avoid using complicated or technical legal terms: Many people like using legal terms while drafting such documents. This can get very confusing and often the layman is left puzzled by what is written. So, to avoid any confusion, make sure the language you use to draft the will is simple and precise.

Try to avoid allotting tenancy rights: People, especially those who have been tenants for many generations, often pass on their tenancy, though it isn’t legal to do so. This is a common mistake and there are many court cases regarding this issue. You cannot state in your will that a relative should become the tenant of the property, since you do not have any right to the property.

When can a will be challenged?

A will is generally challenged by a person’s heirs if they are not satisfied with the shares allotted to them. The common grounds for challenge are that the testator was not of a sound mind at the time of writing the will. Hence, it is pertinent to make the will specific regarding the apportionment of property.

Do I need to make any changes to the will while updating it?

While making a will, a person must revoke his earlier will and declare himself to be of sound mind. In case he is willing to deprive any of his heirs from the property, it is better that he gives reasons for this. A will can be revoked or modified by the testator during his lifetime as many times as he wishes to. However, it is necessary to get the alteration or modification registered if the first will was registered. Codicil is an instrument made in relation to a will, explaining, altering or adding to its dispositions and is deemed to be a part of the will.

Do You Want To Make Changes To Your Will?

Codicil : After making a Will sometimes you may feel that you need to add, delete, substitute or modify any of the clauses or any name or an address or any other details in your Will. But you cannot make these changes in the Will document directly since it becomes invalid.

So how to make changes in your Will?

  • You have to make a separate document termed “Codicil” either on a plain paper or Stamp paper.
  • Mention the date of the Codicil clearly in words.
  • Sign the Codicil just below the last line without leaving any space between the signature and the last line.
  • Get it attested by two witnesses.
  • Keep the Codicil attached to the Will.

When is a Will Invalid?

The burden of proving a will to be valid is upon the party putting forward the will. The will must satisfy the conscience of the court that it is the last will of a free and capable testator. Now, who is a free and capable testator? What disqualifies a person from making a valid will? Let’s find out:

Every person of sound mind, not being a minor, may, of his/her own volition, dispose his/her property through a will. So this means that, a will is valid if:

Sound Mind: The person creating the will should be of completely sound mind at the time of writing it. Therefore, a lunatic or idiot can never create a will. However, a person, let’s say with Alzheimer’s, may create a will in case he/she is lucid at the time of writing it. On the other hand, a completely sane person cannot have created a valid will if he/she was inebriated at the time of its creation.

Only Majors: A minor (a person below the age of 18) cannot make a will in India. A testamentary guardian is appointed to dispose the property of a minor.

Of Own volition: If a will is attained through coercion, it is invalid. This means that, should a son or daughter force (by being mentally or physically coercive), their parents into writing a will in their favour, it is invalid.

Only Own Property: A will can be made by any person, and it is often made in the absence of a lawyer. For this reason, many people end up distributing even assets that don’t completely belong to them. A wife may dispose a house that is in the name of her husband, for example. This creates problems.

How Are Assets Distributed In The Absence Of A Will?

If a person dies without making a Will then all his properties get distributed to his legal heirs according to the personal succession laws, based on the religion.

If there are no legal heirs in the first degree for the deceased, then the properties can go to the second degree of legal heirs and finally if no legal heirs at all then the State would take the property.

The reason for all this?? Just a matter of few minutes was not spared by the deceased to make a proper Will. Hence  it is very important that each individual in the society who has started earning and made some properties or bank balance, should definitely make a will irrespective of whether you are 25 or 65.

Registration Of The Will

There is no need to register the Will. But a registered Will always helps in clearing any future legal issues among the heirs. Once registered, no one can question the validity and authenticity of the Will or the Testator.  To register a Will, you need to go to a nearby Sub-Registrar office and register the Will free of cost.

Credits : LegalDesk

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