The first step in drafting a valid Will is to make a list of all your movable and immovable assets and belongings. This will help you decide which asset to give to whom. It will also serve as a checklist to ensure that no item is left out.
The list can be further divided into categories, such as highly valuable, valuable and less valuable, or an ABC categorization. The list of valuable personal assets, i.e. items in Category A should include items such as residential property, commercial property, machinery, show pieces, antiques and costly furniture, etc. Category B could include car, shares and securities, etc. Category C might include television, gadgets, jewellery, and such like.
The next step is to prepare a list of all the people to whom you wish to bequeath something, namely those who will benefit from your Will, called beneficiaries. While preparing the list, it is better to note down the full name as well as the father's name of each beneficiary, especially when there is a joint family. This will serve to avoid any confusion whatsoever at the time of asset distribution.
The third step is to decide and compile a final item-wise list of assets and name of the person you want to leave each asset to.
A testator may also desire to bequeath a token amount, or a particular item, to a non-family person. He can include the name of such a person against the item concerned or mention the amount to be given.
The testator should also make a checklist of all pending commitments or obligations that are to be fulfilled through the Will. This chart would be a sort of ready-reckoner of the testator's commitment to different family members, for which funds are required. For example, if you still have one or two unmarried daughters, then there is the responsibility of making provisions for their marriage. Likewise, if a son is unmarried, then some jewellery can be allocated for the future daughter-in-law. The commitment may also be with reference to permanent maintenance of some handicapped members of the family, for whom you might like to make a provision in the Will.
In this way, a testator can make a complete plan for all his assets. The checklists will ensure that, as far as possible, all matters are taken care of property.
One should also prepare a list of the various liabilities outstanding as on the date of execution of one's Will. The testator's various liabilities which are yet to be discharged, together with an action plan and the responsibility of specific family members to discharge these liabilities, must be listed. The person preparing a Will can also pass on specific assets to a particular person together with the liabilities attached to such assets.
A Will required the appointment of a executor for its execution. You can nominate a single person as an executor of the Will; equally, there can even be joint executors. The executor of a Will can be either male or female. When a female person is appointed as executor, she is known as an executrix of the Will.
The executor has the powers, rights and duties to distribute the assets of the testator according to the specific direction contained in the Will.
The executor should be an honest person and one concerned about the welfare of the testator's family. There is no problem even in appointing one of the beneficiaries of your Will as the executor.
Another important preparation before executing a Will is the selection of witnesses. A Will should have a minimum of two witnesses who could either be male or female. The important thing is to select two people who you trust and who are willing to sign your Will as witnesses. They should also be available at the time of execution or registration of the Will.
As far as possible, the witnesses should neither be interested parties nor beneficiaries of your Will.
The testator must also decide who is going to draft the Will. For this purpose you could either contact a lawyer, a tax Consultant or write your Will yourself. There is no specification of a particular format or a particular language for writing a Will, so it's easy to write your own Will if you wish to. A family lawyer or any literate person can draft a Will but he must keep your interest and sentiments in mind. Draft wills are found in many legal books.
As per the Hindu Wills Act, 1870, read with the Indian Succession (Amendment) Act, 1926, Wills make by Hindu, Buddhists, Jains and Sikhs are required to be in writing, signed by the testator or any person in his presence by his direction, and attested by at least two witnesses. As noted earlier, this requirement does not apply to Muslims.
There is no particular format prescribed for Wills by law. However, the ordinary form in vogue in England has been followed in India for the last several decades, and that may be adopted. The language employed should be as simple as possible and should free from technical words. It should be easily intelligible to a layman.
The author is Tax and Investment Consultant at New Delhi for last 40 years. He is also Director of M/s R.N. Lakhotia & Associates LLP & The Strategy Group.E-mail : slakhotia@airtelmail.in
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