• How-to

In India, a person can write his or her will after turning 21. While the legal procedure of making the will is very simple in India, one needs to cover certain key areas in it so as to prevent ambiguity in the future.

A will can be made on a plain paper—it doesn’t have to be on a judicial/non-judicial stamp paper. It can be either typed or handwritten, but the latter is preferred as its genuineness can be established if the need arises.

The first paragraph always contains a clause that states that the will has been made in one’s full senses and without any kind of pressure. After listing all the assets, an approximate current value of the house, land, or any other property should be clearly mentioned in the will. Assets like bank fixed deposits, postal investments, mutual funds and share certificates should also be covered.

The will should be handed over to a trustworthy person after signing it in the presence of at least two independent witnesses. These witnesses have to sign it after the testator’s (person making the will) signature, certifying that the will has been signed in their presence. The date and place also must be indicated clearly at the bottom of the will, and all the pages must be signed by the testator and all the witnesses.

You are not legally required to get the will executed in a court of law in the presence of a judicial magistrate. However, the will can be executed in the presence of the magistrate or the public notary nominated by government authorities and sealed in their presence.

A will should contain the following clauses:

* Clause to specify bequeathing of property in whatever form existing at the time of death to the executors (the person who will implement the will after the death of the testator).
* Clause to specify bequeathing of property (both movable and immovable) to the members, with names and the share each would receive.
* Clause to clarify if the executors are to pay the income generated from such property to any other family member.
* Clause to clarify circumstances when the executors die before the death of the testator.
* Clause to ascertain who would hold the property in case bequeathed on minors until they are major.
* Clause to clarify payment of probate (Probate means to “prove” the validity of the last will and testament, so as to settle the estate of the person who has died. It is a legal process carried out in the county courts or district courts).
* Clause for payment of any liabilities incurred in the past or during ceremonies to be conducted upon death.
* Clause to include free will and sound health of the testator.
* Clause to specify division of property between the daughters, and implications on the will if they are married. It should also specify circumstances when they remain unmarried.
*Clauses to specify if daughter of testator dies unmarried.

BIDYUT BIKASH TAMULY is an Attorney-at-Law at Archer & Angel.

©Entrepreneur October 2009

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family business, legal, will