Will Deed Registration
Will is a legal declaration of the intention of a testator with respect to his property, both movable and immovable. The essential characteristics of a Will are that it must be intended to come into effect after the demise of the testator and it must be revocable by the testator at any time.
Many disputes can be resolved at the very outset if there is a clear disposition of one's property in a Will. Making a Will helps ensure one's property devolves as wished and the right heirs receive their fair shares. Under the Indian Succession Act 1925, a Will is a legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death.
After the death of a person, his property devolves in two ways - according to his Will i.e. testamentary, or according to the respective laws of succession, when no Will is made. In case an individual dies intestate (no Will is made), the laws of succession come into play.
Law of succession: The Indian Succession Act defines the rules of devolution of property in case a person dies without making a Will. These rules provide for a category of persons and percentage of property that will devolve on each of such persons.
Significant of Will: A Will is a legal declaration. Certain formalities must be complied with in order to make a valid Will. It must be signed and attested as required by law.
A Will is intended to dispose off property. There must be some property which is being given to others after the death of the testator.
A Will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator. It has no effect during the lifetime of the testator.
Any one of sound mind and not being a minor may dispose of his/her property by Will. Registration of a Will is purely optional and it is not compulsory.
A Will, obtained by force, coercion or undue influence, is a void Will as it takes away the free agency of the person. A Will, made under influence of intoxication or in such a state of body or mind, sufficient to take away free agency of the testator, is void.
A Will can be made at any time in the life of a person. There is no restriction on how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable. A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will. Wills can be registered in any registration office and there is no time limit for presentation to register the Will.
Will can be registered: Though the registration of a Will is not compulsory, it can be registered with the sub-registrar . If, at any time, the testator wishes to withdraw the Will, he can do so. It cannot be ordinarily be tampered with, destroyed, mutilated , lost or stolen if it’s been registered and kept in the safe custody of the office of the Registry. If an unregistered Will is lost, the testator's wish cannot be given effect as it will be difficult to trace the Will. A will can be registered in two ways.
- Ordinary will: Ordinary will can be registered in any of the registration office and there is no jurisdiction.
- Sealed cover deposit of will: A Will also can be kept in a sealed cover and deposited with the District Registrar for safe custody. Person authorized may after the death of the testator, apply with the copy of death certificate for opening the will and get it registered.
Codicil to the Will: If a testator intends to make a few changes to the Will, without changing the entire Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will. One must note that a Will or codicil is not unalterable or irrevocable. They can be altered or revoked at any time.
Probate and administration of Will: Probate is a document issued under the seal and signature of a Court officer certifying that a particular Will was proved, with a copy of the will annexed. On the death of the testator, an executor of the Will or a heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court will grant probate. A probate is a copy of a Will, certified by the court, and is conclusive evidence that the Will is genuine. The Supreme Court has recently held that petition for probate or letters of administration of the Will of a testator must be filed within three years from the date of death of the testator. No probate is necessary for Christian and Muslim Wills. The executor is the most important person in the Will. An executor has a duty to collect and realise the estate of the deceased, pay his debts and distribute the legacies as mentioned in the Will by the testator. The duty of the executor is to probate the Will in a manner known to law. The court shall grant probate only to an executor who has been named in the Will. A probate is essential if the will is for immoveable asset in multiple states.
Tips to avoid loopholes:
a] Personal Details:
The testator’s name, personal details, father’s name and residential address should be explicitly stated.
The date is crucial, especially if the latest Will overrides an earlier draft(s)
It should be recorded in numbers and not words to prevent any ‘fudging’.
b] Verification:
Verifying that the testator wrote the document of their own free will helps to declare upfront that they were not under any compulsion or influence while doing so.
The witnesses must also attest to this.
c] Executor’s details:
The executor of the Will is the backbone of the entire process.
Include his/her name, spell out the relationship between the testator and executor and write down their address to avoid misrepresentation.
d] Identify the heirs:
The name and address of the beneficiaries should be written down clearly, with no ambiguity.
e] Asset details:
Provide complete information about any immovable property mentioned in the Will.
Includes full bank accounts details and documents related to deposits, lockers and insurance policies.
If passing down mutual fund investments, give the folio number (although individual scheme names need not be named).
Also, any collectables and artefacts should be clearly defined/identified.
Include any other assets that may have been inadvertently left out and also estimate your net wealth.
Registration Boss experts opines that, “Now according to Hindu Succession Amendment Act 2005, a Hindu male and female has equal rights over the coparcenary/Joint family property and has the capacity to dispose of his/her share in. a coparcenary property by will. Under Muslim law, male and female can make Will. Will by Pardanasin woman is also valid but stronger evidence is needed to prove the genuineness of the same
A well-drafted will nips potential recrimination and litigation in the bud among legal heirs of deceased. It has been experienced that when there is a Will, painful litigation in the family of the testator is prevented. Only in a very few cases, litigation crops up questioning the genuineness of the Will. One of the main goals of estate and succession planning is making sure that your estate passes on to the intended beneficiaries as smoothly as possible. Hence, people must come ahead and write a will, early on in life
By means of a Will, one can appoint in writing, a testamentary guardian for his infant children. One can have somewhat greater provision for a handicapped child, a widowed daughter or an invalid parent. One can make some provision for a faithful servant, a nurse, a friend in need of money and so on.
There are many cases where professional advice does help. Take the case of parents who were well versed professionals and had a huge concern for their disabled daughter. Here a trust structure was recommended where both parents became Settler as advisors to the trust where medication, education and other expenses were taken into consideration with objectives being set up for the next 60 years.
Further one can fulfill his spiritual desires like creating a trust structure will, donating to good causes like orphanages, temples, old age homes, hospitals, educational institutions, social service organisations etc. We, the Registration Boss a Professional document management entity not only write a will but also introduce processes that ensure that the document remains unchallenged in the court of law and a smooth transfer of estate. For example we insists on video recording of the will and retains in our office file, which further reduces the chances of litigation. We shall assist you to clarify the asset planning process with full effect to secure your hard earned properties to be succeeded to your intended persons like legal heirs, trusts and other beneficiaries”.
