Will is an emotional subject for the client. Approaching this legal subject with a human-first approach needs 2 big objects:
1. Will reflects client’s intentions unambiguously and with utmost certainty. (S. 74 of Indian Succession Act, 1925)
2. Thorough and comprehensible (plain and direct) account of client’s assets and division thereof between beneficiaries.
I recently drafted Will for a Hindu client. Here are my 2 cents:
1. Start with basics: What is a Will [Section 2(h) of ISA] and who can make a Will (Ss. 57, 59-62 of ISA)? Look up for terms like testator, attesting witnesses, codicil.
2. Second, your client’s religion decides which law governs the Will. Will by Hindus is primarily governed by ISA. What properties can be disposed of by a Hindu by way of Will is covered under S. 30 of Hindu Succession Act.
3. Have the complete list of your client’s exclusively and jointly owned movable and immovable properties with you. In case of jointly owned property, your client can give by Will only his/ her undetermined share in the said property.
4. Importantly, a Will must also cover residuary and future properties i.e., the properties acquired by your client after execution of the Will. Specify to whom the residue/ surplus/ future assets of your client (Ss. 102-103 ISA) shall go after his/ her death.
5. The Will must adhere to Section 63 of ISA as regards its execution and attestation. Wills are not required to be compulsorily registered (S. 18 of Registration Act, 1908). However, always recommend your client to get it registered by the Sub-Registrar within the area where your client resides. This increases the authenticity of the Will.
6. What can you do to make a Will strong and free from suspicion? Keep it simple and avoid using technical/ complex words.
7. Lastly, choose the 2 attesting witnesses carefully. Preferably,
– who have known your client for long,
– are residing in the same city,
– one of them at least is younger in age
READ: Section 68 of Indian Evidence Act, 1872 (Proof of execution of document required by law to be attested)
