“Willy – Nilly” – Importance of making your Will

 



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When we asked one mother to make a will, her reaction was, ‘ you people hardly listen to me now, once I make a Will , who will then listen to me?’ We had a tough time convincing her that a Will comes into force only after a person is no more.

There are many misconceptions about a Will.

— A superstition is that if you are making a Will, that shows your end is near.

— All my investments are in joint name with my wife. She will inherit everything after my death, so why make a Will? This is not correct.

— People think that if there is a Will, on producing the Death Certificate of the Testator, the beneficiary gets his/her share allotted as per the Will. This is not correct as the Will referring to immovable assets has to be Probated by the competent Court.

Writing & Execution of A Will-

i) If a person dies without making a will (intestate), his assets will be shared equally by his legal heirs which includes his parents,wife, children-even married daughters, widowed mother and also the families of the deceased son/daughter. Therefore, it is advisable that everyone MUST make a will, to make life of people left behind easy. Will also makes a person’s intentions clear vis a vis how he/she wants his/her assets to be distributed.

ii)A Will can be made of only Self earned properties and not of Ancestral/Huf/Leased/Tenanted Properties.

iii) It is advisable to make a Will for everyone and a Will can be made even on a simple paper with two independent witnesses signing it. Please note that the witnesses are not certifying the correctness or fairness of the Will. They are only certifying that the Will was signed by the same person himself/herself, in sound mental condition, without undue influence  and in their presence. The witnesses do not have to know the contents of the Will.

iv) While making a Will testator can appoint an Executor to carry out the provisions of the Will, as the legal representative of the decease, to execute the Will.

iiv) It is important to register the Will as then the original copy of the Will remains in the Registrar’s office so in case if it is lost, you can apply for a copy. Moreover, there are no chances of tempering with the Will and or changing the Will by undue influence as the Register Will stands a proof incase of dispute after the death of the deceased. In case a person wants to make changes in his/her Will, then he does not have to make a new Will but just add a document/Codicil mentioning what changes he wants in the original Will. In case the Will is already registered then the Codicil also needs to be registered and added to the registered Will.

vi) In case a person has only cash and jewelry then his/her Will may not be probated and the cash and jewelry can be distributed as per his Will.

vii) In case a person has immovable properties and/or substantial investments then it is advisable that the Executor of the Will applies for the Probate of the Will after the Death of the Testator and in the absence of the Will, the family has to apply for a Succession Certificate.

viii) It is to be noted that in the absence of the Will, with the Succession Certificate the deceased’s family can claim all the properties/movable and immovable assets either Self acquired or in Joint names and divide the same equally among the first circle/Class 1 Heirs. In the absence of Probate or Succession certificate, joint names also helps the investment companies to give it away to the other names/nominees on the investment on producing the Death certificate & without reference to the Legal heirs.

However, it is advisable to consult a lawyer for making a Will and as specially if a person does not have children so as to ensure that correct interpretation of the intention of the Testator is made.

So go ahead & make a Will.

 

Chandra Baliga.