Writing a Will – Know some facts

One of my uncle’s died a few years back. He had a huge investment in property and other assets which he accumulated for his children’s future. With two sons and a daughter the family lived happily till he was alive. After his death, the same children are now fighting for gaining the maximum share from his assets. Had he written his intention in a Will to distribute his wealth among his children, the ugly battle could have been avoided.

The above incident is very common in Indian families because 80% of Indians still do not write a Will. There can be varied reasons for not writing a Will – like parents not trusting their children, old family feuds and influence of an outsider in the family. However, no family would like to have a Court interfering in settling the distribution of assets, as many a time the decision goes against the wishes of the member accumulating the assets.

Read – Benefits of a Private Trust in India

Why a Will is important?

Is a Will a very important document? Yes, it is. By writing a will, any living person can bequeath his accumulated wealth to his desired beneficiaries after his death. But do remember, a Will becomes enforceable only after the death. You also avoid family feuds in future and make sure that your children’s future is secure. The spat between the Ambani brothers or the Birla and Lodha battle, highlights the issue very well.

If you do not write a Will, then after your death, assets are distributed as per prevailing laws of succession as mandated by Statute. The court settlement might go against your intention of including or excluding someone you liked or disliked. I have visited so many families where the earning member has invested in bonds and other products 8-10 years back. After his demise, the family found it difficult to transfer these to their names. The administrative procedures are so lengthy that it takes years to take possession and the cost one has to bear goes unnoticed. Through a Will, problems like this can be resolved easily.

At what age should you write a Will?

Anyone who is a major i.e. above 18 and of a sound state of mind can write a will. Ideally 40-50 years is the age when most of the wealth gets accumulated and so one should be writing the Will. However, there are joint family businesses where wealth gets accumulated early in life or sometimes health problems force you to think of an early distribution of assets. In such a scenario, writing a Will at early age is advisable.

Process of writing a Will

Before writing a will one should be very well aware of total assets, movable and immovable, that one owns. Write down these along with the beneficiary and in what ratio you want to transfer. If the beneficiary is a minor, identify the guardian to be appointed. Arrange for two witnesses who do not have any relation with the beneficiaries. Since in disputed cases the court is more interested in proof than the content, the identity of the property to be bequeathed and the identity of the beneficiary (relationship with the testator) should be clearly mentioned. Appoint the executor for your Will. Make sure that they do not hold any relationship with the beneficiaries. Anyone who does not have any interest in your property can be executor of your Will – your family doctor, lawyer or even your neighbor.

When you have identified all the persons of your Will, write down the Will in your handwriting or get it typed. Remember to use very simple language and avoid any technical words. Make sure the intention is written very clearly and there is no ambiguity. Although registration is not mandatory, get the Will registered with the judicial system at the district courts as a registered Will is more authentic and carries a higher veracity in case your Will gets disputed later on. It will be advisable to write the sound state of your mind in your Will to avoid any doubts raised by relatives during execution. In future if you want to change any content of Will, better to rewrite it.

Role of a doctor’s certificate

Most of the time the Will get disputed by the heirs or family members, who are excluded. The strongest objection raised in such cases is that the Will might have written under undue influence or in a state of unsound mind.  Even the witnesses who sign the will may not be present at the time of court hearing to prove the authenticity. Hence, in absence of any proof the court can take the decision contrary to what is mentioned in the Will. To avoid any such tactics being used in the court, mention your state of mind very clearly in the Will and verify it with a doctor’s certificate. It gives an authenticity to the statement and the objection can easily be answered if need arises.

What types of Wills are acceptable?

It is not necessary that a Will should be on a stamp paper or typed. A hand written will on a plain sheet of paper (Holograph Will) is very well accepted as a proof of your intention of distributing your assets.  In fact a hand written will can be very helpful in verifying the writing from the relatives if it gets disputed. Apart from this Conditional Will, Joint Will, Mutual Will, Duplicate Will, Concurrent Wills and Codicils are type of Will accepted in Indian law.

Some points to consider:

Since a Will is a very important document in bequeathing ones assets, a small loophole can destroy the hard work and the wishes of the member. Hence, while writing a Will, remember following points to save your family from any hurdles they may have to face when you are not there:

1. If you want to change the Will, it is better to write a new one and destroy the existing one. If contested in court, the recent Will is always taken as the right Will.

2. Make sure you register the Will even though it is not mandatory.

3. Witnesses signing on the Will do not have any relation with the beneficiaries.

4. Do sign the Will on every page and number it so that there is no scope of addition or deletion.

6. If a Will is made at a younger age any change in events should be accommodated in the Will.

7. Take a doctor’s certificate to prove that it is written in a sound mind.

8. Keep the Will in safe custody like in a locker in the bank.

9. Do not bequeath your property when you are alive.

10. Do not reveal the contents of the Will to anyone.