You can write your will on a simple piece of paper—it does not have to be on a stamp paper and you don’t have to register it. However, the signatures of two witnesses are absolutely critical and their role will come into play while the will is executed, said Justice P B Balaji, Judge, Madras High Court. 

Delivering the Sixth R K Swamy Memorial Lecture today, Balaji also stressed that it is important to make sure that the witnesses will be able to testify that the testator was of sound mind when he made the will, and he signed the will in their presence. 

Justice Balaji, who spoke on ‘Wills, Settlement and Nominations’, said that while an unregistered will has the same effect as a registered one, it is better to register it and obtain a copy. Also, while the will does not have to be in any legal language, it is better to get it drafted by a lawyer, or vetted by one, because clarity is very important to avoid litigations. He said that in one case a testator had said that “everything” would go to his wife, but it was successfully contested his son. In contrast, if the testator had specified the assets that would go to his wife, the outcome could have been avoided.  

The judge also stressed that the beneficiary of the will could not be a witness. 

Aspects of will

Furthermore, a will does not mean transfer of property, which comes under ‘settlement’. Therefore, a testator, after making the will, could sell the property.  

Importantly, it is not necessary to write a will if the desired bequeathal is the same as the line of succession under the law. But a will is absolutely necessary if the testator wants to bequeath his property in a different manner than the legal line of succession. 

Legal heirs differ under the Hindu, Christian and Muslim laws. Balaji said that under the Hindu law, there were four classes of legal heirs—succession passes sequentially. The laws for dividing and transferring property are different under Christian and Muslim laws. 

Settlement is possible before a person dies. Transfer of title to the property happens immediately after the settlement is executed. The person who makes the settlement cannot go back on it, though he may retain the right to reside in the property or the right to the rental income. 

Justice said, unlike commonly understood, a ‘nominee’ does not become the owner of the transferred assets.  The judge said that in his experience he found that “property disputes bring out the worst in people.” 

Published on December 12, 2024