Will Drafting

What is Will Drafting?

Will drafting is the process of creating a legally binding document that outlines a person's wishes regarding the distribution of their assets, property, and other possessions after their death. It ensures that a person's desires are followed and helps avoid potential conflicts among heirs and beneficiaries. A well-drafted will provides clarity, reduces disputes, and guarantees the orderly distribution of assets according to the testator’s intentions.

In will drafting, the person creating the will (known as the testator) will work with an attorney or legal professional to ensure that the document is legally valid and meets all requirements in the relevant jurisdiction.

Types of Will  

Various types of wills cater to different needs, from basic asset distribution to healthcare decisions. Here's a quick overview of the common types of wills in India. 

• Privileged Will: Made by members of the armed forces, mariners, or airmen when in active service, allowing them to make a will without the usual formalities. 
• Unprivileged Will: A regular will made by individuals who are not in special circumstances like those in the armed forces. It requires standard formalities such as witnesses and signatures. 
• Simple Will (Last will): Basic will outlining asset distribution after death. 
• Holographic Will: Handwritten by the testator, valid in some cases without witnesses. 
• Registered Will: Signed and registered with a Sub-Registrar for added legal validity. 
• Joint Will: A single will made by two or more individuals (usually spouses) with mutual provisions. 
• Mutual Will: Separate wills made by two people with reciprocal provisions, often used by spouses. 
• Conditional Will: Distribution depends on specific conditions (e.g., beneficiary reaching a certain age). 
• Living Will- A living will (also known as an Advance Directive) is a legal document that outlines your healthcare preferences in case you become unable to communicate due to illness or injury. It specifies the medical treatments you do or do not want, such as life support, and can appoint someone to make healthcare decisions on your behalf. 

The Last Will and the Living Will are the two most common types, people create. One determines how assets are distributed, while the other outlines healthcare preferences. 

Who Needs to Make a Will & Why it’s Important? 

Anyone who wants to ensure that their assets, property, medical treatment and personal wishes are handled according to their preferences after death should consider preparing a will. While not mandatory, it is highly recommended for those who want to safeguard their wishes and prevent future complications. Here’s why a will is important and who should consider making one. 

1. Adults with Assets or Property: If you own property, savings, investments, or valuable personal items, a will ensures they are distributed according to your wishes. 
2. Parents:  
   • Parent with Minor Children: A will is essential to specify guardianship in case both parents pass away, ensuring your children are cared for by someone you trust. 
   • Parents with One or More Children: Parents having one child or multiple children should have a will. For those with multiple children, it is advisable to register the will for additional legal protection. However, for parents with a single child, notarizing the will may be sufficient to ensure their wishes are honored. .  
3. Married Couples: A will can clarify how assets should be shared or passed on between spouses, especially if there are children from previous marriages or blended families. 
4. People with Specific Wishes: If you have unique or specific instructions for how you want your funeral arranged, or if you want to leave money to charity, a will allows you to do so. 
5. People in Blended Families: If you have children from different relationships or a complex family situation, a will can help prevent confusion or disputes about inheritance.  
6. Individuals with Debts: A will can outline how debts should be handled and who is responsible for paying them. 
7. Own a Business: A will can outline plans for your business, ensuring its smooth transition or continuity after you’re gone. 
8. People Concerned About Future Medical Care: A Living Will allows you to specify your medical treatment preferences, such as life support or resuscitation, if you become unable to communicate, ensuring your wishes are followed. 

Key Clauses Found in a Will

• Parties Involved:
  1. Testator (Will Maker):The person who writes the will and decides how their belongings will be shared after they pass away.
  2. Executor (Chose by Testator): The person chosen by the testator to manage the estate, ensure debts are paid, and distribute assets according to the will’s instructions.
• Appointment of Executor: Designates an individual (executor) to carry out the terms of the will. This clause ensures the person named is responsible for managing the estate, paying debts, and distributing assets. 
• Appointment of Guardians (for Minor Children): If the testator has minor children, this clause is crucial as it appoints a guardian to care for the children in the event of the testator's death. It ensures that the children will be looked after by someone the testator trusts. 
• Attestation Clause: An Attestation Clause is a statement at the end of a will confirming that it was properly signed and witnessed. It usually includes the names and signatures of witnesses, stating that the testator signed the will voluntarily in their presence. 
• Revocation of Previous Will: This clause revokes any prior wills or codicils (amendments to previous wills) to avoid confusion. By doing so, the testator ensures that only the most recent will is considered valid. 
• Declaration Clause: It states that the document is the testator’s Will, revoking all previous Wills and codicils. 
• Details of the Testator: It includes the full name, age, address, and soundness of mind at the time of making the Will.  Distribution of Assets Clause: It clearly mention of how movable and immovable assets (property, bank accounts, investments, valuables, etc.) are to be distributed among beneficiaries. 
• Specific Bequests Clause: IT outlines the details about gifts or specific items left to particular individuals (e.g., jewelry to a daughter, car to a nephew). 
• Residual Clause: It outlines what should happen to any remaining or unspecified assets after specific gifts are distributed. 
• Guardianship Clause (if applicable): This clause appoints a guardian to care for any minor children or dependents in the event of the testator’s death. 
• Debts and Liabilities Clause: It states how outstanding debts, taxes, and liabilities should be settled before asset distribution. 
• Funeral and Burial Instructions: It is an optional clause where the testator may mention their preferences regarding funeral rites or cremation/burial. 
• Witness Details: It outlines the full names, addresses, and signatures of at least two independent witnesses (as required under Indian law). 

Eligibility & Requirements

Who is Eligible to Make a Will? 

Under section 59 of Indian Succession Act, a person can make a will to dispose of their property, but certain conditions apply: 

• Married women can make a will for property they could manage or sell during their lifetime. 
• People who are deaf, dumb, or blind can make a will if they understand what they are doing. 
• A person who is sometimes insane can make a will when they are in a sound state of mind. 
• A person cannot make a will if they are in a state of mind where they don't understand what they are doing (e.g., due to intoxication, illness, or other causes). 

Process to Draft a Will 

Self-Assessment 

• Assets & liabilities: List your assets, debts, bank accounts, investments etc and potential beneficiaries. 
• Consider goals: What do you want to achieve (e.g., asset protection, family needs, charity)? 

Selecting a Legal Professional 

• Hire a lawyer to ensure legal validity and guidance for complex estates. 
• DIY wills: Affordable but risky for complicated estates—may cause errors or disputes. 

Identify Your Beneficiaries 

• Primary Beneficiaries: The individuals or organizations who will receive your assets. 
• Secondary (Contingent) Beneficiaries: In case, your primary beneficiary cannot inherit your assets. 
• Consider who gets what (specific items, percentages, or the entire estate). 

Gather Information 

A will should typically include: 

• Your full name and address. 
• A statement saying that the document is your will. 
• A declaration that you are of sound mind. 
• Appointment of the executor and, if applicable, the guardian for minor children. 
• A list of assets and beneficiaries with specific distributions. 
• Any other specific wishes or instructions. 
• A statement of revocation of any prior wills. 

Writing the Will 

You can write your will: 

• Manually (handwritten wills are valid in some places but must meet specific requirements). 
• Consulting an Attorney: An attorney can help ensure that your will is legally sound and covers all necessary areas. 

Witnessing and Signing 

• Most jurisdictions require that you sign the will in front of two witnesses who are not beneficiaries of the will. 
• Witnesses must sign the will acknowledging that they witnessed you signing it and that you appeared to be of sound mind. 

Store Your Will Safely 

• Keep your will in a safe, accessible location. 
• You may choose to store it with your lawyer, in a safe deposit box, or with an online will storage service. 
• Tell trusted people (e.g., executor, spouse, or a close friend) where it’s stored. 

Review and Update Your Will Periodically 

• Marriage, divorce, birth of children, or any new life circumstances might require updates to your will. 
• Every few years, or after any major life event, it’s a good idea to review your will to ensure it still reflects your wishes. 

Ensure Your Will is Legally Valid 

• Check your jurisdiction's laws: Requirements for creating a will can vary by state, country, or region. Some places may require additional formalities such as notarization or registration. 

Know the Law 

In India, the validity of wills is governed by the Indian Succession Act, 1925 (Sections 59, 63, and 70). These sections outline the requirements for making, executing, and revoking a will. Personal laws govern distribution of property based on religion: 

• Hindus, Buddhists, Sikhs, Jains: Governed by the Hindu Succession Act, 1956, allowing individuals to freely distribute property through a Will. 
• Muslims: Governed by Muslim Personal Law (Shariat), which allows a person to bequeath only one-third of their estate through a Will. The remaining two-thirds must follow fixed inheritance rules. 
• Christians and Parsis: Governed by the Indian Succession Act, 1925, allowing individuals to freely distribute their estate through a Will. 

Post-Will Procedures: Managing and Executing the Will Legally