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A brief introduction of the subject of how to make a will in India by legal experts.
A will is an important and crucial instrument. It is for distribution and / or management of the estate of a person prescribed by him during his/her life time. Indian law relating to wills has been described in Indian Succession Act, 1925 and the Indian Registration Act, 1908.
In India, a will can be made only in respect to self-acquired property . The testator can also include the disposal of his vested share in the ancestral property. Will can also be executed for future property or expected share in some property by making specific conditionality in this regard. If the will has already been executed than a Codicil can be executed to add the same to the will.
Will can only be made by any person who is above the age of 18. If there is no will then the property of the testator could be disposed off according to intestate rules and the existing laws of India.
We have tried to explain in details the legal process of how to make a will in India.
Essential ingredients and tips on how to make a will in India:
Declaration In The Beginning:
The executor of the will in India has to make a clear. He has to write a unambiguous and candid declaration that he is executing the will on his own, without any influence,force,coercion, pressure by any body.
The testator has to mention about the previous wills. He has to mention that all the previous wills should be understood to be cancelled, revoked and withdrawn by the present will.
The executor has to specifically mention that he is in sound state of his mind and is executing the will on his own. This is an important steps towards how to make a will in India.
Details of Property and Documents:
The next step of how to make a will is to give a details of all the properties. The details of movable as well the immovable properties, bank account details, shares, lockers etc.
The testator has to mention that any thing not mentioned or omitted regarding the property may also be distributed in such and such manner to avoid any complications in future.
If testator wishes to distribute his property in the name of the minor as beneficiary then a custodian of the property should be appointed to manage the property.
Attestation of the Will:
At the end; once the testator complete writing his Will, he must sign the will very carefully. In the presence of at least two independent witnesses, who have to sign after his signature, certifying that the testator has signed the Will in their presence.
Online advice on how to write a Will in India. Online services for drafting and registration of will in India, execution of will and
litigation arising for execution of will for launching of Probate proceedings and obtaining letter of Administration by expert lawyers in India.
The date and place of execution of the will should also be be indicated clearly at the bottom of the Will.
It is very necessary that the executor should sign all the pages of the will with his thumb impressions. This is an important adjunct in how to make a WILL in India.
Registration of Wills:
According to the Section 18 of the Registration Act, 1908 the registration of a Will is not compulsory in India.
Once a Will is registered, it is a strong legal evidence that the will has been executed properly and the parties had appeared before the registering officers and the latter had attested the same in accordance with laws in India.
The process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of jurisdictional area for registration of the will.
Once the scrutiny of Will instrument is done by the registrar and if the registrar is satisfied with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator.
If the testator willing to withdraw the Will after the process of registration then a sufficient reason has to be given to registrar, if satisfied he will order for the registration of Will. This is the penultimate stage of how to make a WILL in India and should be done with utmost care and under guidance of a lawyer for execution of will in India.
Execution of A Will:
On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate in India.
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.
A probate is to be treated as conclusive evidence of the genuineness of a Will.
In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent.
This has to be displayed prominently in the court.
Thereafter, if no objection is received, the probate will be granted and it is only after that Will comes into effect.
It is the copy of the will which is given to the executor together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved as per the exiting laws in India
The application for probate shall be made by a petition along with copy of last Will and testament of the deceased to a court of competent jurisdiction.
The copy of the will and grant of administration of the testators estate together, form the probate.
It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator.
A probate is obtained to authenticate the validity of the will and it is the only proper evidence of the executors appointment.
The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator.
Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased under the laws of India.
Will By Muslims Under Mohammedan Law:
A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property.
The Mohammedan Law in India restricts a Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death.
A will may be in the form of oral or written if the will is in writing need not be signed; if signed need not be attested.
According to Shia Law if served bequests are made through a will, priority should be given to determination by the order in which they are mentioned a bequest by way of will.
A Will Can be made by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is capable of holding property except unborn persons and heirs.
The revocation of will is possible only if the subsequent Will is made by the testator.
A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs gives consent or only heir is husband or wife.
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