What is Will? How to Write Will?

A will of property is a document written by a living person who is stating his last wish to execute his property after his death. It becomes important to take the advice of a lawyer while writing the will of property because it becomes complex to execute the will if it isn’t written in a good way. The person who has made the will of the property will not be there to explain the meaning of his intentions written in the document. 

What is the will?

A will of property is a legal document that states how a testator’s movable, immovable property and liabilities should be distributed after death. The provisions for the will are given under the Indian succession act 1925. It applies to every religion in India except Islam. 

Parties under the will of property

While writing a will of property, a person should know the legal terms which are being used in the will. A person can take the help of a legal advisor while creating his will. Let’s know about the parties under the will of property:

Testator

The testator is the person who creates the will. A person can only create the will when he is alive. If a person dies without writing his will of property, the person is called as died intestate. 

A testator must have the capacity to contract while creating the will of property. It means the testator should be:

• Sound mind person
• Major

A person, who is not of sound mind and doesn’t cross the age of majority cannot write the will of his property. 

Executor

A person who executes the will of the property after the death of the testator is called the executor. An executor is a person who brings the testator’s intention written in the will of property into effect. A testator while writing his will can appoint the Executor to execute the property after his death. 

The executor of the will can be the beneficiary or any third person. He must be an honest and trustworthy person. 

A person should choose a younger person than him to make his executor so that he should be available even after the death of the testator. A testator can also add an alternate person who can take the place of executor if the real executor will not be available for the execution of property.

In a case, where the testator didn’t appoint any executive for the execution of property, the court of law can appoint a person to execute the property of the testator and that person is known as the administrator.

It should be kept in mind that the executor of the property should also be of sound mind and must have the knowledge to understand the intention of the testator written in the will of property.

After the death of the testator, for the execution of the will, the court will grant the probate certificate to the executor of the will. 

Probate is a certified copy of the will that is issued by the court after the application given by the executor. This certificate is provided by the court to ensure the validity of the will and it gives the right to the executor to distribute the property according to the will. 

The probate certificate becomes more important if the testator has multiple properties in different states. 

Beneficiaries under the will of property

The person or persons who are going to get the benefits from that will of property is known as the beneficiary under the will of property. 

Usually, the testator chooses the beneficiary from his family. But it is not necessary, a testator can give his property to anyone as a beneficiary. The beneficiary can be an NGO, any trust organization, political party etc. 

After the execution of the will, the beneficiary will get full or a specified part of the property as written under the will of the testator.

Witness under Will of property

To create a valid will of property, there must be at least two witnesses present in the will of property. These two witnesses are the persons who must be presented at the time of signature done by the testator of the property. 

The witnesses under the will of the property will also declare that they were present at the time of the making of the will. One photo will be clicked with these two witnesses and attached with the will of property.

Sometimes, in litigation, the court may need some witnesses to authenticate the testator’s signature. In that situation, the court will call these two witnesses to validate the testator’s signature.

There are some points related to witness under the will:

• A beneficiary and executor of the will cannot be the witness
• If there are no witnesses for the will, they will be treated as void will.
• The witness’s job is to validate that the testator had signed in their presence.

It is advisable that there should be at least one doctor and one advocate present as a witness for the will of property. Because as you know, a person who is not of sound mind cannot write the will. The doctor as a witness can also confirm that the testator of the property was a sound mind at the time of making his will of property. An advocate can help the testator to give him legal advice while creating the will of property. These two persons can solve different problems and also be used as witnesses for the will of property.

Benefits of making will

There are lots of benefits to making a will. Any person who has attained the age of majority and sound mind can write a will to take the following benefits:

Management of property

The testator of the property can decide how his property should be managed after his death.

Pre-decided beneficiaries

A testator of will can decide who will be the beneficiary of his property after the death. Although, if a person didn’t make his will of property, the court will help his legal heirs to distribute the property equally. But sometimes it happens that the rules of the court may not meet with the wishes of the deceased owner of the property. But if he makes the will before he dies, he can choose the beneficiaries and specify the shares of property which he was to distribute among them.

Appointment of guardian

A person can appoint legal guardians for his children. 

Fast process for distribution

Property disputes take a lot of time and money to solve. But if a person makes the will of his property, it becomes easy to distribute the property according to the proportion given under will.

No family dispute

Normally it happens that after the death of a person, his property becomes a reason to create a dispute between his family members. But if a person writes a will before he dies, he can protect his family from such disputes.

Reduce legal complications

After the death of a person, it is hard for the family to spend this time with lawyers for the property distribution. But a written will of property helps the family to spend that difficult time with each other.

Protection of business

A testator can appoint a good person from his legal heirs or any third person who can take his business to the next level after his death.

Features of the will of property

Drafting a will is a little bit tough for a simple man. That is why the person should take the help of an advocate while writing his will. There are some features of the will that should be known to the person who is going to make his will:

Will as a legal declaration

A will of the property is a legal declaration made by the testator. It is considered that it is the final wish of the testator. 

Property distribution

It shows the real intention of the testator that how he wanted to distribute his property between his legal heirs or any other persons.

Enforceable after death only

A will made by the testator can only be enforceable after his death. The beneficiaries in the will cannot claim any rights over the property if the testator is alive. 

Alteration in will

A testator of the will can change his will any time before his death after signing the codicil. A codicil is a legal document that is signed by the testator in the presence of witnesses. It means, if the testator needs to change his will, he has to re-sign the document in front of the witnesses. 

Withdrawal of will

A testator can withdraw his will and keep it in safe custody. 

Void will

• Any will made by the testator under any fear, pressure, force, coercion or undue influence is void will.
• A Will made by a person who is not of sound mind is a Void will.
• Will made by the testator without witnesses is a void will. 

Validation of last will

A testator of the will can make unlimited wills in his life but only the last will made by him is enforceable and valid. All will that was made by him before the last will of the property becomes void.

Will by the legal guardian

An unsound mind person or minor cannot make the will. But they can make their will through legal guardians. 

Beneficiaries cannot become witnesses

The beneficiaries in the will cannot become the witnesses in the will of property. 

How to write a will?

According to section 63 of the succession act, will be signed in the presence of at least two witnesses. There are some necessary steps that we should follow while writing a will.

Name to the document

Start your first step by giving the title to your document as LAST WILL AND TESTAMENT.

Name and declaration

You can start writing your will with your name, description, age and address. You should declare that you are writing this will without any pressure or undue influence and you are a sound mind person. You should also declare that this will be your last will and suspend all will written earlier.

These are the main steps which you should write in your first paragraph. You can also add an objective behind the writing of this will.

“I Shyam Lal Son/ of Ram Lal aged about 48 years, by religion Hindu, by Occupation Farmer residing at Janak Puri do hereby declare my this is my last will which I make on the 24th day of May 2022. I am making this will without any pressure or coercion. It’s my free will to create this will. Being a sound mind person, I am conscious that no one is certain about death and it is an inevitable event.  Hence I am making this will so that my movable, immovable property and liabilities be distributed between my legal heirs and any other person which I am adding in this will.

I also hereby revoke my previous will made by me on 24 May 2012.“

Appointment of executor

Before going to the details, you should appoint your executor who will help in the execution of property after the death. You can also add the paragraph that in a case your executor is unable to act, another person will become the executor for that will.

“I appoint Mr Mohan Lal Residing at Jamuna Nagar to be the executor of my this WILL, in a case where he is unable to act, then Mrs Renuka Devi residing Dwarka Nagri will be the executor of my will.“

If you want, then you can also add a testamentary guardian for your minor child. You can also at the line by writing that the guardian will take care of your child until he turns 18.

Name of beneficiaries

After the appointment of the executor, you can add the name of the beneficiaries and legal heirs with their name, date of birth and relationship with you. Write down the details of every family member if you are not going to bequeath anything to them.

My legal heirs are:

1. Amit Kumar age 12 DOB- 12, November 2008. Relation-First Son
2. Sunita Devi age 10 DOB- 14 Feb 2006 Relation- Daughter  
3. Rohit Teja age 42 DOB- 00-00-0000 Relation-brother

Details of property

After giving the information about your legal heirs and beneficiaries, you can give the proper detail of your movable and immovable property. 

You should also write down the liabilities with proper description. If you have any plot in another City, then you must add the proper address of that plot. If you are also adding the jewellery in your will, you should add the weight of that jewellery. 

Immovable Assets:

1) 2BHK Flat in Himachal Pradesh, Address- 04 Gali, Sunder Nagar Chowk, Main Bazar, pin 172543, Teh, Jakat Pur, Distt, Dharamshala, Himachal Pradesh

2) 2 kg gold in locker number 121112022081

3) Bank of Bark Balance 10000000

Movable Assets:

3) Maruti Suzuki- HP 21 0057

4) Hero Honda bike HR 23 2384

You must add full detail about the loan or advances that were taken, if you have any insurance policy then you should also mention that.

Loans and Advances:

5) 50,000 loan from the bank of XYZ on the interest rate of 10%.

Bequest your assets

After giving the declaration of all movable and immovable property with liabilities, you can bequest your property to different legal heirs or beneficiaries according to your will. You must add a separate paragraph for a separate beneficiary.

A.) Property at Himachal Pradesh mentioned in point (1) above to be given to Amit Kumar

B.) All my Mutual funds’ holdings shall be given away to Amit Kumar

C.)All my rest property shall be given to Sunita Devi

Every person adds their nominee at the time of opening the bank account. If the nominee and beneficiary of that bank account will be different, there are chances that there can be any conflict on that point. You can remove this face by adding a line into your will that:

I specifically mention that all financial assets will be distributed as per the nominees mentioned in the accounts.

If you are not giving your property to your legal heir which should be included in your will, you have to give the reason behind that.

I declare that my brother Rohit Teja shall not be liable to take my property because he has killed my wife. Due to this reason, I am removing his name from the will.

Taxes and liabilities

You have to declare the name of the person to whom you wished that he will pay the taxes and liabilities after you. 

I declare that after my death, my son Amit Kumar will pay all my debts and taxes.

You can also add other points if you think that you need to add such points in your will.

Sign the will

After adding all the points you have to sign your will in the presence of at least two witnesses. These witnesses have to sign all the pages of your will with the date. 

You must be sure that the witnesses in the will are not related to the executor or beneficiaries. 

Registration of the will

After all the process is done, you can get your will notarized. Although it is not compulsory that the will must be registered under the law, if you want, then you can register the will with the sub-registrar. 

For the registration of the will, you have to appear in the sub-register office with your witnesses, executor and pay the government fees. He will check your will and your registration process can be completed within one week. 

The registration of the will is not complete compulsory but it has many advantages that:

• The sub-registrar will take custody of the will.
• The registered will cannot tamper
• It cannot be lost or stolen
• No individual can access your will without the express permission in writing of the testator.

Key points of the will of property

• A Person can change the will of property made by him many times during his lifetime. 
• A person who has made the will of his property is known as a testator
• There must be two witnesses while creating the will of property.
• Before creating the will of property, a person must be aware of his property and wishes
• The testator can make his will without any legal assistance although a person should take the legal help while creating the will of property.
• The testator of property cannot make an oral will. The will must be in written form. The will can be handwritten or typed will.
• Will must be written clearly and the parties which are being added in the will must be with their real names, personal detail, family details, property details, etc.
• While creating the will of property, the testator must be of sound mind and he must not be in any type of fear, force coercion or undue influence.

Sample Will Template

LAST WILL AND TESTAMENT

                                                                                                                                       Date: __/__/_____

“I Shyam Lal Son/ of Ram Lal aged about 48 years, by religion Hindu, by Occupation Farmer residing at Janak Puri do hereby declare my this is my last will which I make on the 24th day of May 2022. I am making this will without any pressure or coercion. It’s my free will to create this will. Being a sound mind person, I am conscious that no one is certain about death and it is an inevitable event.  Hence I am making this will so that my movable and immovable be distributed between my legal heirs and any other person which I am adding in this will.

I also hereby revoke my previous will made by me on 24 May 2012.

“I appoint Mr Mohan Lal Residing at Jamuna Nagar to be the executor of my this WILL, in a case where he is unable to act, then Mrs Renuka Devi residing Dwarka Nagri will be the executor of my will.

My legal heirs are:

• Amit Kumar age 12 DOB 12, November 2008. Relation-First Son
• Sunita Devi age 10 DOB 14 Feb 2006 Relation- Daughter  
• Rohit Teja age 42 DOB 00-00-0000 Relation-brother

Immovable Assets:

1) 2BHK Flat in Himachal Pradesh, Address- 04 Gali, Sunder Nagar Chowk, Main Bazar, pin 172543, teh, Jakat Pur, Distt, Dharamshala, Himachal Pradesh

2) 2 kg gold in locker number 121112022081

3) Bank of Bark Balance 10000000

Movable Assets:

3) Maruti Suzuki- HP 21 0057

4) Hero Honda bike HR 23 2384

Loans and Advances:

5) 50,000 loan from the bank of XYZ on the interest rate of 10%.

“I have provided the under mentioned legacies to be spent and given out of my estate and my desire shall be carried out by my executor. I wish that after my death, all mention property shall be distributed in the following way:

A.) Property at Himachal Pradesh mentioned in point (1) above to be given to Amit Kumar

B.) All my Mutual funds’ holdings shall be given away to Amit Kumar

C.)All my rest property shall be given to Sunita Devi

I specifically mention that all financial assets will be distributed as per the nominees mentioned in the accounts.

I declare that my brother Rohit Teja shall not be liable to take my property because he has killed my wife. Due to this reason, I am removing his name from the will.

I declare that after my death, my son Amit Kumar will pay all my debts and taxes.

——————————

Signature of Testator

———————-                                                                         ————————-

   Signature                                                                                             Signature

  (Witness 1)                                                                                           (Witness 2)

Conclusion

I hope your doubts regarding the will of property have been cleared. The above-given information is research-based. This information is just giving the General information. If you are going to make the will of your property, you should definitely take the help of a lawyer. 

You can follow us on Instagram, Linkedin and YouTube to get notifications of new articles published by Legal Study Material.