Making of Will

A will according to Indian successions act means “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. 

Will is a document made by the testator in name of a person to whom the testator wish to pass the property. Will contains an Heirs wish regarding the property that how he wish the property to be distributed. Will may contain a single person’s name or more than one person’s name. It may contain description about a single property or about more than one property.

NRI’s and Will

NRI’s as are living abroad, they face issues regarding forming a will as they have to take out time and come all the way to India to form and execute a will. NRI’s face problem in registering and executing a will as it may consume a lot of time. This problem may be solved with help best lawyers and advisors for property law. A good lawyer will help in reduce wastage of time of the NRI’s. The lengthy procedure for will attestation and registration requires a lot of office work and procedure to be followed which should be assisted from the lawyers.

Who can create will?

According to section 59 of the Indian Successions act following are the person to form a will:-

  • A married woman may dispose by will of any property which she could transfer by her own act during her life.
  • Persons who are deaf or dumb or blind are not thereby incapacitated for making will if they are able to know what they do it.
  • A person who is ordinarily insane may make a will during interval in which he is of sound mind.
  • No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause that he does not know what he is doing.

Who cannot create a will?

In following scenario a person cannot create a will:-

  • If a person is mentally incapable of coming in contract, or a person is insane or mentally challenged, not able to understand things properly. This kind of person cannot legally create a will.
  • A minor person cannot create a will. The age of maturity in India is 18 years.
  • If a person is under the care of guardian than that person cannot create a will until the age of 21 years.
  • A lunatic person cannot create a will.

Legal statutes for wills

India has made different legal statutes to govern different situations regarding property transfer, registration and succession. Following are the legal statutes which applies to wills:-

  • The Indian Registration Act, 1908
  • Hindu law
  • Muslim law
  • The Indian Successions act, 1925

Need for creating a will

Will is a person’s wish about how its property shall be distributed after its death. A person works hard to earn its property and may have many sentiments and emotions attached to the property. Testator wish to pass the property in right hands so that property duly cared. It is always a wish of the testator that a property shall be distributed and passed to its heirs according to its wish. Will is the last words of the testator regarding the distribution of the property. It is better that a property is alienated according to the wish of the testators.

Registration of will

Registration of will is not always necessary as of according to section 18 of the registration act. The will shall be registered as of according to following procedure:-

  • The person executing a will must be present at the registrar office along with witnesses.
  • A minimum fee required shall be paid.
  • Registrar may also act as a witness in certain scenarios.
  • The will is to be signed by the testator in front of the registrar.

A will after registration is kept safe in the office of registrar in fire proof boxes. The record of each will is maintained in registers by the registrar.

When a will comes in force?

A will only come in force after the death of the testator. The beneficiary who is about to get the property according to the will has no right in the property until the testator pass away. A testator may make any number of changes in the will before its death.

Attestation of will

A will after it is made and all the legal clauses have been added shall be attested by the testator by putting signature or thumb impression on it. The will then must be signed by two or more witnesses in front of the testator.  Some other person can also affix testators mark.

Execution of will

After the death of the testator, an heir of the will can appeal for probate of the will. After the probate is appealed, court will ask other heirs for any kind of objections. If there is not any objection raised then court will pass the probate, but if there is an objection then citation will be observed. A probate is the legal document validating the will.

Our lawyers

Our team of practicing lawyers have been dealing with property cases from many years. Our advocates can be consulted to form, attest, register and execute a will. For convenience of NRI’s we offer video consultancy and on call consultancy. Walk in consultancy is also provided by our experienced legal advisors.