7 minute read 24 Sep 2021
Importance of will in India

Why framing a will is important

By Surabhi Marwah

EY India People Advisory Services Partner and Private Client Services Co-Leader

Partner, People Advisory Services and Co- Leader, Private Client Services. Bibliophile and an avid traveler.

7 minute read 24 Sep 2021
Related topics Tax

Will is an important legal document to ensure effective estate planning and wealth distribution.

A will is a legal document specifying the wishes and intentions of a person regarding distribution of their assets and wealth after their lifetime. A person who writes a will is called a Testator.

Writing a will becomes imperative to ensuring that an estate is devolved as per the wishes of the Testator. In the absence of the same, succession of their assets will take place in accordance with applicable succession laws. The benefits on estate planning are numerous, and often ensure peace. A Will is an important part of estate planning.

Succession for Hindus, Buddhists, Jains and Sikhs is governed by the Hindu Succession Act, 1956. In case of demise of the male member of a family without a will i.e. intestate, his assets/ estate firstly devolves upon his immediate heirs i.e. Class-I heirs. Amongst Class-I heirs, assets will be first divided equally among the widow, mother, son and daughter.

In the event, there are no Class-I heirs, the assets devolve upon other heirs, in the following order of priority:

  • Class-II heirs – Examples are father, son's daughter's son, son's daughter's daughter and so on;
  • Agnates – A relative whose connection is traceable exclusively through males (for example, cousin from the father's side); and
  • Cognates – A relative whose connection is traceable not wholly through males (for example cousin from the mother's side).

An illustrative representation of devolution among Class-I heirs is provided below: 

Devolution among male and female hindus Class-I heirs

Essentials of a valid will in India

A will should be drafted using clear and simple language in order to scope out any ambiguity/ interpretational issues. The testator should understand the contents of the Will clearly and properly. The Will may be drafted in a persons maiden language or translated for the respective individual while being video graphed in order to make the entire process transparent.

  • Listing of personal wealth - Make a list of all the assets and liabilities including immovable properties, bank deposits, share certificates, investments and mutual funds.
    The testator would also be required to consider the composition of his assets and whether all the assets held by him are capable of being disposed through a will.
  • Beneficiaries/Legatees – Clearly identify a list of beneficiaries/legatees under the Will. The Testator may provide for unforeseen circumstances such as if the intended legatee predeceases on the date of operation of Will, then the said asset will transfer to the second named beneficiary/legatee and so on.
    Similarly, the Testator may set out certain qualifying conditions upon which the intended legatee will be entitled to receive the asset/property. For example, the intended legatee is not separated or divorced with the family member of Testator. In case of legatees being minors, the Testator may appoint guardians who shall hold the property on behalf of and for the benefit of such minor legatees.
    In order to substantiate the validity of a Will, the Testator may provide reasons for exclusion of immediate relatives, who would otherwise have been legal heir under the Act, from the Will.
  • Bequests – While deciding the distribution of assets, a Testator may consider factors such as nature, use, value etc., of the assets. The Will should clearly set out the intention of the Testator with respect to each asset. It should clearly indicate the legatees to each property and demarcate the assets with respect to which the Will is being drafted.
    A Will may also be used to set out a life interest clause that outlines who is to benefit, and any conditions associated with this benefit. For instance, a husband may provide in his Will that the residential house shall be enjoyed by his wife during her lifetime with a condition that the wife shall not have the right to deal with the property and the same shall be succeeded by his children on the demise of the wife.
  • Witnesses The Will must be signed in the presence of at least 2 independent witnesses, being adults and witnesses should sign only when they have seen the Testator sign or affix his mark to the Will or have received a personal acknowledgment of his signature. Each of the witnesses shall sign the Will in presence of the Testator, though not necessarily at the same time. Further, in relation to Witnesses, it is recommended keeping the following in consideration:
    • The Witnesses should be reliable, trustworthy and be able to vouch for the authenticity of the entire proceedings;
    • Witnesses should be such persons who are likely to survive the Testator;
    • The beneficiaries to the Will (Legatees) should, as far as possible, abstain from acting as Witness to the Will.
  • Medical Certificate  For a valid Will, the person making the Will should be of sound mind and legally capable of dealing with his assets. Therefore, ideally a doctor’s certificate should be attached certifying that the Testator is physically and mentally fit, of sound mind, mentally competent and can take his/her own independent decisions for making his/her Will.
  • Registration - Registration of Will is not compulsory under the law. Non-registration of Will(s) does not lead to any adverse inference against the genuineness of the Will and is a personal choice of the Testator. However, once a will is registered, it is placed in the safe custody of the Registrar and cannot be tampered with, destroyed, mutilated, or stolen. It is advisable to undertake the registration of the Will(s) for the following additional reasons:
    • Provides proof that proper parties (Testator and the Witnesses) have appeared before the Registering Officer and the Registering Officer has registered the Will after ascertaining the identity of the Testator and the Witnesses.
    • Provides a supplementary supporting evidence and reduces the possibility of dispute with respect to the Will’s validity.
  • Alterations in the will – While a Testator can include a clause in the Will to deal with the assets acquired after making the Will, if there is a change in the status of beneficiaries or assets over a long period of time, these should be updated by the Testator and the Will can be amended to this extent to ensure that it’s still reflective of Testator’s future wishes. It is pertinent to note that a Will once drafted is not set in stone and may be amended/ updated by the Testator as and when required. Accordingly, the last Will shall be enforceable and will supersede the previous wills.
  • Executor – Another important thing is that the Testator should wisely choose an executor, who is the legal representative of Testator post his lifetime. Executor is responsible for disposing of the assets of Testator in accordance with the wishes as specified in the Will. Generally, the Testator appoints his trusted advisor/ confidante as executor of the Will who would be capable of ensuring smooth and effective transfer of bequests.
    Testator may additionally entrust Executor with the following responsibilities:
    • To perform such funeral and obsequial ceremonies upon demise of Testator and to spend such amounts on such funeral and obsequial ceremonies as the executor may in his/her absolute discretion deem fit;
    • To do all acts, deeds and things which are reasonable, necessary and proper for the realization, protection or benefit of the estate and completing the execution formalities.
  • Safe place to keep the Will – While preparing the Will some important points which may be considered by the Testator includes who to consult, who all should have its knowledge and where it should be kept. The same needs to be considered by the Testator in detail to avoid any adverse impact on the relationships between the family members and ensure future peace and harmony.
  • Probate – Probate is a copy of Will certified by a Court granting the executor of Will for administration of the Testator’s estate. Not all Wills require to be probated. As per the provisions of Indian Succession Act, 1925, probate of a Will is required in the following circumstances:
    • Where the Will is made in within the local limits of the High Courts of Calcutta, Madras and Bombay;
    • Where the Will is made outside these limits but relates to immovable property situated within these limits.

(Puneet Anand, Senior Manager-Tax and Roopal Bajaj, Senior Consultant-Tax have also contributed to the article.)

Summary

In the current situation of the ongoing COVID-19 pandemic, the importance of will in India has assumed even more relevance to ensure that the future of ones near and dear ones is secured. Though succession planning continues to evolve and more sophisticated arrangements are explored, a valid Will is essential in India for planning the future.

About this article

By Surabhi Marwah

EY India People Advisory Services Partner and Private Client Services Co-Leader

Partner, People Advisory Services and Co- Leader, Private Client Services. Bibliophile and an avid traveler.

Related topics Tax