A Will Draft is an essential document that ensures the distribution of the Testator's assets as mentioned in it. Read on to learn about the important components of a Will Draft.
Drafting a Will is a legal process where the document perfectly describes how the assets and belongings of the Testator must be distributed when the need arises. If you do not draft a Will, then the court Will determine your next of kin and Will name all your belongings to his/her name.
A Will is a court-binding document that takes effect after the passing away of the Testator. A Will draft can be hand-written or typed using a computer. The Testator has the right to alter or revoke the Will anytime before his/her death. According to section 59 of the Indian Succession Act 1925, the person who is drafting a Will must be of age and sound mind.
What are the Essential Components that Should be Put While Drafting a Will?
There are many things to take care of while drafting a Will. Below are some of the essential components one should remember to include in a Will draft:
- Personal Information: The person drafting or writing a Will is the ‘testator’. The Will should include all the personal information of the Testator. These include full name, address and date of birth. It also includes the names of their immediate family (spouse and children) in it. If they go by any other aliases in society, it is recommended that they include those in the Will as well.
- Declaration of Date: It is highly recommended that the Testator mentions the date on which he is drafting the Will.
- Testamentary Intent: The Will draft should include all the necessary legal language which characterises the document as a Will and not confuse it with some other document. This is generally done by using phrases like ‘This is my last Will and testament’. The testament should reflect the intent of passing one’s assets to the beneficiaries if the need arises.
- Declaration: The Testator must include a declaration in the Will to declare that he is of sound mind and is not under any pressure while drafting a Will.
- Assets and Properties: One of the most important components of a Will is Assets and Properties. The Testator must ensure that all his assets and properties are listed in the Will. It is imperative that all the assets are listed so that they can be passed on to the beneficiaries mentioned in the Will. The list of assets must include personal belongings, money, real estate, business shares, etc.
- Beneficiaries of the Will: The beneficiary is the person to whom the Testator has bequeathed his assets or a part of them. Anyone who is mentioned in the Will is the beneficiary. He/she can be a family member, friend, business entity, charity organisation or even a trust fund.
It is often recommended to include a contingent beneficiary in the Will in case the primary beneficiary is not able to receive the benefits of the Will. A testator must be vigilant while naming beneficiaries who are not family members, e.g., a domestic partner. If their names are missing from the list of beneficiaries, they may not have the right to inherit the Testator’s assets legally since they are not the next of kin.
- The executor of the Will: In a Will, the Testator mentions the name of the executor of the Will, who makes sure that the wish of the Testator is carried out if/when the need arises.
The executor is entitled to carry out the terms of the Will and manage pending affairs like taxes, bills, etc. If the name of the executor is not mentioned in the Will, the court will appoint an executor for it, or someone will have to volunteer to be the executor of the Will.
- Guardianship: There are majorly two situations where a guardian has to be appointed in a Will:
- If the Testator has bequeathed some assets or properties to children who are still minors, the Testator can name someone as a guardian of the assets who would take care of the assets until the children become of legal age
- A guardian can also be appointed to take care of an elderly person or a person with disabilities under the Testator’s responsibility.
- Signatures: After the Will draft has been completely written and reviewed, the Testator must provide his signature to ratify the Will. Sometimes, in addition to the Testator’s signature, multiple signatures of witnesses are also required to validate the Will.
What Mistakes Should You Avoid while Drafting a Will?
Here are some of the common mistakes you should avoid while drafting a Will:
- Avoid making the Will very complicated. To ensure that the intention of the Will is followed smoothly, the Testator must try and draft a simple Will. This Will also ensure that no one misinterprets the Will
- Do not allocate tenancy rights. Some testators try to pass on their tenancy rights to some assets to the Will’s beneficiaries, even though it is not legal. You cannot allocate the tenancy rights to an asset because you do not own the property
- Update the Will. The Testator must ensure that he/she updates the Will every time there is a change in their estate because of new assets bought or some of the old assets sold. A codicil is a document which contains all the alterations, updates or additions that the testators will have gone through. It is considered to be a part of the Will by the court.
While drafting a Will, you should ensure that all the essential components mentioned in this article are incorporated. After you have successfully drafted the Will with the proper signatures of the witnesses, store it in a safe place where your family members or friends can find it when the need arises. You can also appoint an attorney to act as a safe keeper of the Will. If you have any queries reach out to Vakilsearch.
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