Most of us toil hard all our lives to earn wealth. We buy land, flats, bungalows and invest in other kind of property. But this property is useful to us only during our lives. What happens to it after we die? A person is definitely concerned about the fate of his property after he leaves this world. As a solution to this, our legislators have made provisions for the disposal and distribution of property of the deceased in the hands of desired persons by the execution of wills.

If a person does not make a Will, his property will devolve upon his heirs according to the respective statutory provisions. In a person’s lifetime, he can also gift his property to his near and dear ones out of natural love and affection, but then this leaves matters in limbo, as his own security in his lifetime itself gets diluted. Let us understand the true nature of a Will.

A Will is the legal declaration of the intention of the person making it, whereby he leaves behind his property to other person/s after his death. Thus, in order to be a legally enforceable will, it should comply with the formalities as provided in law. The person making a will is called the ‘testator” and in case of a lady, a “testatrix”. A will takes effect only on the death of the testator.

A person can make a Will at any time during his lifetime. He can make a Will as many times as he likes, but only the last will, executed before the testators death is enforceable. It revokes all previous wills and testamentary dispositions. The will has to be executed by the testator by signing or affixing his mark (signature, thumb impression, stamp, etc.) to the Will. Two or more witnesses are required to attest the Will, each of whom should have seen the testator signing the Will or follow the provisions as laid down in the law.

While it may be one of the most important documents that a person makes, there is no prescribed form for making a will. No technical words need to be used while making a will. It can be handwritten or typed. No stamp duty is necessary for Wills. Also, registration of Wills is not compulsory; but that does not stop a person from registering the same.

If the testator wants to make any alteration or additions to his will (i.e. if he wants to amend the Will), he may do so by making a codicil. A codicil shall form part of the Will. This normally is done when some additional properties are purchased or some properties are disposed off and amendments are required. Such a codicil Will form part of the existing will. A Codicil is valid only if it is executed and attested in the same manner as a Will. A Will or Codicil may be revoked or cancelled in writing, at any time by the testator.

He must declare his intention to revoke the Will or codicil and, execute it in the same manner as the Will or codicil. A Will or codicil may also be revoked by the burning , tearing or destroying of the same by the testator or, by some other person in his presence and, by his directions , with the intention of revoking the same. A joint will, in respect of their common properties may be revoked by either of the testators during the life time of both or, by the survivor, on the death of one of them.

Many a times, the testator wants to keep a secret of his last wish. Yet he wants to register the same. In such a case he could deposit the Will with the Registrar in a sealed cover superscribed with the name of the testator and that of his agent, if any, along with a statement of the nature of the document. The Registrar on being satisfied of the identity of the testator or his agent, shall retain the sealed cover in a fire proof box in his custody.

The testator may withdraw it by applying for it at any time and the Registrar shall deliver it accordingly. After the death of the testator, any person may apply to the Registrar to open the cover and if the Registrar can do so if he is satisfied that the testator is dead.

The laws regarding proving the Will in a Court by obtaining a probate has gone through various changes. Compulsion to prove the Will by means of Court orders is no more necessary in all cases. If the Will is executed in Pune and the properties are in Pune, the Will need not be probated. The same however changes if the city is Mumbai. In such an event it is compulsory to probate the Will.

The problems normally appear when the testator has a Will leaving his property to “A” but in the nomination forms in banks or in respect of a property in a Co-operative Housing Society Ltd. for instance, the nominee is other than “A” , then the society or bank will follow the instructions under the nomination . But the nominee only holds the property in his fiduciary capacity as a trustee for the heirs of the deceased, i.e. the property would still devolve on “A”. But he society records would show another person as owner.

People often intend that their property is left in the right hands after their demise. If we have a clear idea about the legalities of a Will and how it should be made, we will avoid any kind of unnecessary disputes over our property after us. By making a valid Will, we can be assured that our property Will be used in the desired manner by the desired people after us.

“Making A Will” By: Advocate Zaheer Khambatta