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Why you should create a will?

In the absence of a properly executed will, the ways ahead can be not just too many for comfort, but too convoluted as well. Sanjeev Sinha tells how to plan a will to avoid all that.

business Updated: Apr 21, 2008 23:51 IST
Sanjeev Sinha

There is an old saying that where there’s a will, there’s a way. In fact, in the absence of a properly executed will, the ways ahead can be not just too many for comfort, but too convoluted as well. However, in our country ‘will planning’ is rarely seen as a part of financial management – not even by those who born with a silver spoon in their mouth.

Whatever be the case, will planning is important because a will always acts as an inventory of the assets left behind by the deceased. “Also, with today’s individualistic and lower tolerance kin friction, post a parent’s death causes decades of litigation rather than a settlement. And the litigation and friction could easily be avoided or reduced by a timely will,” says Sandeep Parekh, partner, P H Parekh & Co.

Will planning is also important for those having substantial wealth, especially if they want their estates to be distributed in a specific manner after they cease to live. Moreover, when there is ambiguity and lack of clarity over the natural heirs. “Even for those desirous of distributing their wealth to anyone other than the natural heirs, the will assumes paramount importance,” says Ashish Kapur, CEO, Invest Shoppe.

But what exactly is a will? According to legal experts, a will is a legal declaration of the intention of a person with respect to his/her property or a state, which he/she desires to take effect after his/her death. It’s a document that can be revoked, modified or substituted by the person executing the will at any point of time during his lifetime. The will can be executed even on a plain paper and can be fully valued even if unregistered. The will under law is not required to be compulsory registered.

“However, that does not stop a person from registering the same,” says a legal expert.

Once a will is registered, it becomes strong legal evidence, for it naturally gets an impression that the same is most authentic. The will, however, has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing state of mind. It has to be signed by its executor and has to be attested by at least two witnesses. Also, as no stamp duty is payable on a will, it need not be written on stamp papers.

So far as the making of a will is concerned, any person of sound mind, who is not a minor, can dispose off his property by a will. Persons who are deaf or dumb or blind can also make a will, if they are able to know what they are doing.

There are two kinds of wills: privileged and unprivileged. Privileged wills are made by soldiers, airmen, those engaged in expedition, or actual warfare and a mariner. All other wills are unprivileged wills. However, signature or mark of the testator — the one who’s making the will — is necessary for unprivileged will.

Every unprivileged will should be attested by at least two witnesses who have seen the testator or his agent sign the will.
The revocation of a will may be voluntary or involuntary. An involuntary revocation is by operation of law. Any will made by a testator stands revoked by the marriage of the testator that is one who makes the will. Revocation results not only from the first marriage but also from any subsequent marriage.

Interestingly, a person can make a will at any time during his lifetime. He can also make a will as many times as he likes, but only the last will, executed before the testator’s death, is enforceable.