Advantages and disadvantages of Will

This Old saying is correct when we talk about it in terms of Willingness, but in terms of Legal World, the way these days seem to be little difficult as well as time consuming. Since WILL has become one of the most favorite way to transfer the self acquired property because everyone wants to be sure that during his/her lifetime one should have the peaceful possession of the property and more over when WILL is not a mandatorily registered document. But the problem actually comes for the ones in whose favor the WILL has been made after the demise of the testator.

Therefore in order to save time, money and most importantly the relations, the following precautions should be taken when the WILL is made:

1. Whenever you make a WILL get the same registered despite the fact it is not mandatorily required to be registered. Hon’ble Supreme Court in “Narain Singh v. Kamla Devi” has held that mere non-registration of the WILL an inference cannot be drawn against the genuines of the WILL. However it is advisable to register it as it provides strong legal evidence about the validity of the WILL. Once a WILL is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate.

Since a testamentary disposition always speaks from the grave of the testator, the required standard of proof is very high. The initial burden of proof is always on the person who propounds the WILL.

2. After the amendment of the Information Technology Act one should video graph the WILL, in order to rule out the possibility of any objection which will be taken by other heirs at the time of the probate.

3. Ensure that both the attesting witness must sign in the presence of the testator. Always make young witness to the WILL, because if the Witnesses to WILL are old age, the possibility of their getting die before the testator is always there.

4. Ensure that you make a Doctor and a Lawyer witness, so that the mental as well as the legal aspects related to the WILL should not crop up at the time of objections in the probate court i.e. mental capacity of the testator, fraud, undue influence, coercion upon the testator or the contents of the documents were not being explained to the testator.

5. Try not to make a witness who is interested or related to the beneficiary of the WILL, because that could raise doubt in the mind of the Judge while issuing the Probate as the witness could be interested ones.

6. Always make a mention in the WILL that this is the last WILL and if any made previously stands revoked, because since it is not mandatorily registered documents, there is always a possibility of multiple WILL coming after the demise of the testator.

Hope you like the suggestions and this will help you save time, money as well as relations.

Kapil Chandna Advocate

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1 Comment

  • VINOD KUMAR SHARDS says:

    The most prevelant document for T.O.P. is will. but at the same time it is a document which is of no use. There can be registered or un-rgistered will. Getting a will to probate is another difficult task. Even if a will is probated then execution of will is also a herculions task. My question is there has to be two witnesses in a will, now will comes into operation only after the death of executor and in case both the witness dies before the probation of wil, then how the wil will be probated? If a person hold will in his name but he is not in physical possession of immovable property and at the same time do not have any documentary evidence that he ever was in physical possession of the willed property then what will be his status. The most important factor that in case of immovable property will must be accompanied with proper map of I.P.. In case testator of the will is illiterate and both the witness are illiterate then there will be thumb impression of testator and witnesses the probating the will become more difficult. In view of above stated difficulties it can not be vouched that will is a safe documents. The most important case for inheritance of I.P. through will is of Birla Group. where inherter of property was Sh.Lodha, C.A. of Birla. The most important question in that case was Lodha did not have any relation with Birla, the question raised in Cal H.C that will was got executed fraudulently and under influence. In the light of above case and circumstances please explain the sanctity of will

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