How to make a will: A quick checklist

While it is advisable to a keep a will prepared in the best of times, the present time of uncertainty, makes it a much more real issue.

The Covid-19 pandemic and the ensuing quarantine has brought into sharp focus the fragility of human life. We have been compelled to examine our preparedness to deal with an unprecedented situation like the present. This evaluation is being made afresh across the board, whether by nations, corporations, religious organisations, families or by individuals.

This period of isolation has offered quietude to those of us fortunate enough not to be on the frontlines and has given us an opportunity to take stock of our lives and catch up on procrastinated checklists. As restrictions are slowly lifted and we prepare ourselves to get back in operation, it is in everyone’s interest to protect themselves against another shock in the future. This may include revaluating contracts, making sure insurance has not lapsed, recalibrating one’s stock portfolio, or even estate planning.

This strange and uncertain period has forced not only the senior citizens of our country, but also many younger people (especially those with children) to address the question of whether it would be prudent to make a will, a question which many would not have liked to address till much later in life. While it is advisable to a keep a will prepared in the best of times, the present time of uncertainty, makes it a much more real issue. In the present article, the authors set out briefly the legal position when it comes to preparing a will, which is a relatively simple process. Who may make a Will?

A Will can be prepared by a person at any stage of his life and the only requirements are that: firstly, he is a major i.e. over the age of 18; and secondly, he is of sound mind1 . Even a feeble or debilitated person can make a Will as long as he is capable of exercising proper judgement as to the mode of disposing of his property. The Will takes effect after the death of the person making it (“Testator”). The Testator making the Will must, in doing so, act of his own free volition—a Will induced by coercion or caused by fraud is void.

What are the requisites of a valid Will? While a Will does not have any fixed format, it should be carefully drafted to avoid future disputes. While it is not necessary that technical words or terms be used, the wording must make known the intentions of the Testator.3 While making a Will, care must be taken to ensure the following: The Will should contain a declaration that it is the last Will and Testament of the Testator and that the Testator is a major and of sound mind and has made the Will of his own free volition.

1. The Will should contain an accurate description of the assets being bequeathed.

2. The Will should list the details of the beneficiaries. It is suggested that if a person who would have naturally been a beneficiary had the Testator died intestate (without making a Will) is being excluded, the reason for the exclusion of such person should be clearly stated.

3. The Will should specify if any person has been authorised to act as an Executor (i.e. the person who will ensure that assets are disbursed in accordance with the Will).

4. The Testator must sign or affix his mark to the Will (or it can be signed by another person in his presence and under his direction). This signature or mark should be placed so that it is clear that it is intended to give effect to the writing as a Will. The Testator should sign/affix the mark below the last sentence, as any writing below the same will not be considered a part of the Will. The place of execution of the Will should also be mentioned.

5. The Will must be attested by two or more witnesses each of whom has seen the Testator sign or affix his mark to the Will.

Each witness must sign the Will in the presence of the Testator, but it is not necessary that more than one witness be present at the same time, and no particular form of attestation is necessary. The language of the Will should be unambiguous and no blank spaces should be left which may allow additions. There are also different types of Wills which may be considered.

A Joint Will is a single document which is jointly executed by two or more persons containing their testamentary dispositions. Testators may also execute Mutual Wills whereby they may confer reciprocal benefits to each other or bequeath their properties to mutually agreed beneficiaries e.g. this is often done by a husband and wife. Does a Will need to be registered? While registration of a Will is not compulsory it is always advisable as it provides strong evidence of the Will’s validity, which is crucial as the initial burden of proof is on the person who propounds the Will.

A registered Will is unlikely to be destroyed, stolen or tampered with. There is no stamp duty payable on the registration of a Will. Unlike other documents, a Will may, at any time, be presented for registration or deposited. The Testator (or after his death any person claiming as executor or otherwise under a Will) may present it to any Registrar or Sub-Registrar for registration.A Testator may also deposit his Will in a sealed cover with any Registrar who will maintain a record in his register along with details of any persons who may testify to the Testator’s identity and retain the sealed cover in a fire-proof box.

The Testator may also apply for withdrawal of the deposited Will. On the death of the Testator who has deposited his Will, on an application to the Registrar, the sealed cover will be opened in the applicant’s presence, a copy will be made, and the original Will re-deposited. Can a Will be revoked? A Testator can revoke or alter his Will at any time when he is competent to dispose of his property by a Will. A Codicil made in relation to a Will, may explain, alter, or add to its dispositions, and is deemed to form a part of the Will.

A Will or Codicil may be revoked by (a) another Will or Codicil (b) some writing declaring an intention to revoke which must be executed in the same manner that a Will is executed or (c) burning, tearing or destruction by the Testator or under his direction. To avoid a dispute, it is advisable that a subsequent Will expressly state that all previous Wills and Codicils stand revoked.

While the making of a Will is a somber, and for obvious reasons, a subject often avoided, an unambiguous Will minimises disputes which are always taxing for the loved ones of the deceased and would certainly be in the best interests of all concerned in this strange and uncertain time. (Endnotes) 1. Section 59, Indian Succession Act, 1925 (“ISA”) 2. Section 61, ISA 3. Section 74, ISA 4. Section 63, ISA 5. Section 63, ISA 1. Sections 17-18, Registration Act, 1908.

In Ishwardeo Narain Singh v. Kamta Devi AIR 1954 SC 280, the Hon’ble Supreme Court held that the mere non-registration does not warrant an inference against the genuineness of a Will. 2. Section 27, Registration Act, 1908 3 . Section 40, Registration Act, 1908 4. Sections 42-45, Registration Act, 1908. 5. Section 62, ISA 6. Section 2(b), ISA 7. Section 70, ISA The authors are Advocates of Karanjawala & Co. practising before the Supreme Court of India and the High Court of Delhi. Meghna Mishra is a Partner at Karanjawala & Co. Tahira Karanjawala is a Principal Associate, Karanjawala & Co. and Yashvardhan Bandi is a Senior Associate, Karanjawala & Co.