In a bid to update and educate members and industry professionals on the paperwork about legal heir, AIRIA Eastern Region and IDFC First Bank had jointly organized a seminar on 'Will Writing' recently on 24th July, 2024 at Kenilworth Hotel, Kolkata. The seminar saw more than 50 participants and was well-appreciated by participants.

The Keynote Speaker of the Seminar Soumendra Roychowdhury, a renowned Expert and Advocate, who specializes in the subject, educated about the significance of drafting a will, choosing the Right Will for their needs, legal requirements for signing a Will, the convenience of online, etc.

The Seminar started with the Welcome Address delivered by Vishal Bagaria, Member, ERC, AIRIA where he welcomed the Mr. Roychowdhury and distinguished participants. It followed the Inaugural Address by Jai Prasad, Cluster Head Kolkata, IDFC First Bank wherein he highlighted the significance of the topic & various schemes of the bank.

Here are some excerpts from the speech, Mr. Roychowdhury delivered on the Will Writing:

What is a Will?

In legal terms, a will in India is a document that specifies how property and other assets may be dispersed upon the death of the executor of the will. It cannot be utilized against the executor while they are alive and only becomes active after their death. A Will should be signed in the presence of two witnesses to give a legal effect as per Indian laws.

In India, it is not mandatory to record a will. An individual may voluntarily add one more witness to his/her Will that is the Government of India (Sub-Registrar's Office) with some additional effort and cost. It helps the family in the event someone challenges the authenticity of the Will, resulting in court intervention to prove that the Will is genuine. It makes proving genuineness easy without the need to call witnesses, etc.

Steps for Will Creation

1. The testator must first go to the sub-office registrar in the area where they reside or where the majority of the estate is located to record a will. The original Will is made more reliable and trustworthy by the testator's physical attendance before a government official
2. The Will may not be disclosed to the testator's contemporaries for reasons of privacy or security, but it can be recorded at any time due to its delicate nature. Thus, unlike other papers that must be registered within 4 months after the date of execution.
3. While filing the document, one should carefully review it to make sure there are no legal omissions
4. A date is set in the sub-registrar office for the enrollment process after the Will has been reviewed
5. It costs money to record with the nominal government, which varies from state to state
6. The testator should make sure that he must travel to the Sub-office Registrar's with at least 2 attesting witnesses
7. The Recorded copy of the Will is available for pickup following the procedure in one week.

The Fundamental Standards for Making a Will

The Indian Succession Act's Section 59 addresses a person's ability and necessity to create a Will. Regarding this, it states:

• A person who is not a minor may make a will to dispose of his property, and a person who is not deaf, blind, or dumb should have the mental capacity to understand the nature of the testamentary disposition
• The individual writing a will must be of sound disposition, which means they must be free from mental immaturity, idiocy, mental weakness, delusion, acute illness, serious physical infirmity, etc
• The person writing the will needs to be completely aware of its contents and give their approval.

What is the procedure to write a Will?

The procedure to write a will involves determining assets, appointing an executor, and clearly outlining beneficiaries and their shares. Seek legal advice to ensure the document adheres to legal requirements, making it a valid and enforceable expression of your wishes for asset distribution after your demise.

Which document is required for Will?

The key document required for a will is a comprehensive list of your assets and their details. This includes properties, investments, bank accounts, and any personal belongings. Ensuring a thorough and accurate asset inventory is essential for creating a clear and effective will.

Is a notarized Will valid in India?

Yes, a notarized will is valid in India. While notarization adds a layer of authenticity, it's advisable to consult legal experts to ensure the will complies with all legal requirements. Professional guidance can help prevent potential challenges to the validity of the will in the future.

How can Will be legalized in India?

To legalize a will in India, the testator (person making the will) should sign it in the presence of at least two witnesses. These witnesses should also sign the will. While not mandatory, registration with the local registrar provides an additional layer of authenticity and can be done for added legal security.

Can make a Will without a lawyer in India?

Yes, it is possible to make a will without a lawyer in India. However, seeking legal advice is advisable to ensure the will complies with all legal requirements. Legal professionals can guide individuals through the process, ensuring the will is clear, valid, and effectively reflects the testator's intentions.

Is handwritten Will valid in India?

A handwritten will, known as a holographic will, is valid in India. However, it must be entirely handwritten, dated, and signed by the testator. While witnesses are not mandatory, their presence can strengthen the will's authenticity. Seeking legal advice ensures the handwritten will aligns with legal norms for validity and enforceability.

What is the benefit of preparing a Will?

Preparing a will ensures that all your assets and properties are distributed and disposed of as per your wishes after your death avoiding disputes/ misunderstanding or any legal interference within the family. Also, if you wish to give more share to some of your relatives/heirs and want to ensure that certain person must not get any of your assets and properties, then will is the only effective document to do the same. For example - if one wishes to donate organs, give flat to wife, give more/less to any particular son/daughter, give some amount to parents or also care taker/friend etc., such wishes can be mentioned in a Will which shall be binding to all - family, relatives, all laws, all courts including the Supreme Court of India. Individuals following Muslim religion may have to follow Sharia laws for succession of wealth instead of writing a Will.

What will happen if one does not make a Will?

When one dies without writing a Will (called "intestate" in legal language), all your properties, assets, and wealth are distributed as per Succession Laws applicable to your religion/personal law, like The Hindu Succession Act, etc. You must know that such succession laws have defined fixed proportion to be distributed to all/several family members which may not be as per your wishes. There could be chances of delay in the distribution of properties and may lead to legal cases, disputes amongst family members, etc.

How to Make a Will?

Will can be handwritten or typed, however, typed Will is preferred on plain paper as Stamp paper or stamp duty payment is exempted in India for a Will document. A Will should be in any language which is suitable to the person who has made the Will. A Will should cover details of the family, properties/ assets, liabilities, wishes, bequeaths (property distribution wishes), names of two witnesses, date and place of signing, sign of the person who has made the Will and both the witnesses on each page.

Which properties/assets can be mentioned in the Will?

It is advisable to mention all single/ joint properties, wealth, assets and receivables as well as all liabilities/loans in the Will, including movable, immovable, intangible properties and assets. Movable properties will include Cash, Jewellery, FDs, Bank Accounts, Insurance Policies, Vehicles & all furniture, fixtures, etc. Immovable properties will include all Land, buildings, flats, Shop, Office, Plot, Garage, etc.

Can Husband & Wife prepare one single Will as a Joint Will?

Yes, it is allowed where both the husband and wife bequeath all properties to each other and the final bequeath is mentioned by which properties are distributed to family, relatives, etc. as per Joint Will. However, such a joint Will can take effect only after the death of both and not during the lifetime of either one. Many times, husband and wife prepare 'Mirror Will' which are two separate individual Wills where each spouse gives all his/her property to the other spouse and mentions the third person as an Alternate Beneficiary.

Where can a Will be stored/kept?

Legally a will can be stored at any place. However, it is advisable to store the Will at a safe and secure location where it cannot be tampered with and it can be easily found by your family after death. It may be kept in the safe custody of a locker, with a trusted person or with professionals like bankers or solicitors who will take necessary steps to inform the executor after death. Various banks and financial institutions offer custodian services for safe safekeeping of the Will.

Can an ancestral property or property received as a legal heir in the past be bequeathed by a Will?

Ancestral properties in which title/ownership is legally transferred can be bequeathed by a Will.

What about Assets that are missed or forgotten to mention in the Will or future assets?

A general clause is included in a Will for residual properties/assets (miscellaneous assets that were missed) which specifies who should receive 'residual assets' and similarly a general clause is added for 'all future assets'.

When and how a Will can be cancelled?

One can cancel/revoke their Will at any point of time or even by making a fresh Will. Once a Will is made all the past/old Wills stand cancelled. A Will can be revoked in the following ways:-

Whether to pay Income Tax or any other Taxes in respect to properties under the Will?

No, as of date any property received under the Will does not attract any tax including capital gain tax. In the past, there was an Estate Duty tax which was abolished in 1985 by the India Government.

Who can help to draft a Will?

A Will drafting can be done by any legal professional. In today's world of technologies, a Will can be made online with software which is developed by Will lawyers with IT engineering expertise. Drafting of a Will in simple and clear language with required legal clauses can avoid undue legal disputes/misunderstandings.

ADVANTAGES OF WILL DRAFTING

Hassle-Free Wealth distribution

The Family that has a clear understanding/instructions/wishes of the wealth owner about wealth type and whom to distribute, has no confusion/misunderstanding. Even financial institutions/banks/property agencies have a clear mandate to act for distribution. It reduces hassles for families.

No Intervention of laws/courts

In the absence of a Will document, the overall wealth distribution goes according to the Succession Laws like the Hindu Succession Act, etc. to define who are the Legal Heirs and the distribution pattern by way of a Succession Certificate from the court. Such a process takes 6 to 12 months and has heavy legal expenses cost.

No inheritance taxes for NRI in the foreign country of residence

Many developed countries levy an Inheritance Tax on wealth left behind. If the NRI has wealth in a local residence country as well as India, he/she can make a separate Will as per Indian laws for all India-based assets that way Inheritance Tax on India-based wealth can be saved.

Avoid the risk of family debonding

Nowadays Wealth is becoming more powerful than Relations. In the event, that there is a No-Will, family members are clueless about the deceased member's wish, which indeed causes confusion/misunderstanding between legal heirs, son-in-law, daughter-in-law, etc. resulting in disputes/fights and legalities resulting in debonding among family members due to wealth.

Business Succession as per Wishes

For a business owner, the efforts to create the business and the hard-earned wealth shouldn't go in vain. An appropriate successor for the business assures a smooth flow of wealth or else all the legal heirs could be claimants to the business which may give rise to a situation and an unhealthy decision for the business. where survival of business becomes difficult.

There was a Q&A session and the participants were happy to get their answers/suggestions from the Speaker Mr. Roychowdhury against various queries. Rakesh Kumar Dugar, Chairman, Eastern Region, AIRIA felicitated Mr. Roychowdhury and delivered the Vote of Thanks. The seminar was followed by a networking dinner.