wills in india

Wishes Beyond the Grave

Death being the ultimate unknown and finality with no scope of return, we humans more often than not, would like to leave behind at least a trace of ourselves with our near and dear. While some people find the most effective way of “remembrance” is by controlling the narrative of their valuable and tangible assets, others base it on the pure emotional connections and hierarchical decisions of the law. While the former enables execution of wishes of the deceased via a well-drafted Will, the latter propels the long arduous task of hopefully identifying all the assets, application of laws of succession and execution by the living heirs. In either situation – will or intestate i.e. dying without a will, problems of execution may arise, however, a legal document with clear demarcations of assets and wishes from beyond the grave, to whom they belong, make it harder to refute and less likely to create bad blood amongst the living.

Essentials of a Will and other Necessities

While planning a Will, it is not necessary for it to be drafted by a lawyer, however, it creates greater security of unquestionable execution if it is. Even a vetting of the draft Will by a lawyer would suffice. However, if that may not be a plausible option, ensuring the very basics of a credible Will are met, provides your rightful heirs with a greater chance of ease of inheritance.

Who is a testator?

The person making the will/ the person whose will it is.

Plain Paper

It is not necessary for the Will to be written or printed on stamp paper and does not add to its authenticity even if it is done.

Enumerate

It may seem easier to give blanket statements, but there is a reason they say God is in the details! While listing down each item of the asset (movable, immovable, financial) may seem like a daunting task, your valuables have been hard-earned or maybe well inherited, so try to do justice to that memory and ensure it goes to the next rightful owner. Do not presume that our loved ones are aware of all our financial dealings or will eventually discover them.

Nominees are not presumed beneficiaries

A nominee is a person appointed by the person investing in an asset. Upon the investor’s demise, they are just caretakers of the assets and not owners, they are legally bound to transfer it to the legal heirs. The laws of succession will be followed if there is no Will, therefore in your Will, it is important to mention whether the nominee is entitled to the proceeds of the asset or any other person as mentioned in the Will.

Inheritors

The wonderful part of the Will is that you can give your assets to anyone you like and in whatever proportion you wish. Family, friends, long lost lovers, charitable causes, the help at home, office staff, even your pet iguana! Though it would be better to Will your iguana to someone who would take good care of it, you could create a trust for your iguana that would enable the person to take very good care! But that’s a discussion for another article.

Must be in writing with testator signature/ mark

The will can be handwritten or typed but it is imperative for it to be signed /marked by the testator. An email with the testator’s digital signatures, no matter how encrypted, will not be recognised as valid.

Attestation

Two or more witnesses must sign the Will. They should be ethical, trustworthy and ideally not a beneficiary to the Will. While it is ideal if the witnesses are present when the testator signs his/ her Will, it can also be done indirectly (the testator must acknowledge that the signature on the Will is his/hers and he has not been coerced in any manner). Although the simultaneous presence of both witnesses is not necessary, try to safeguard that the witnesses sign in the presence of the testator. Though not essential, including the name, address and phone numbers of the witnesses with their signature, adds to the ease of tracing them if required by the heirs.

Registration

Though neither is it mandatory to register a Will nor does it offer any guarantees of it not being opposed, however, it is highly advisable, especially if there are expectations that the heirs are likely to challenge the Will.

Notarised

This can be done if registration is a problem, though it doesn’t add to the authenticity of a document. A registered Will always prevails all authenticity.

Video Recording

If the aim is to increase the chances of authenticity, there is an option to record a video of the testator reading and signing his/ her Will. These steps are an addition towards reducing any challenge to the Will.

The Executor – Not Essential but Definitely Eases Execution

An executor of a Will is a person who is entrusted with the original or copy of the Will; upon the death of the testator, the executor needs to read the Will (prior to probate) to the family and be responsible for the task of discharging the liabilities from such assets and thereafter distributing the same as per the Will.

While it is not necessary that an executor must be appointed, as per law, a probate can be granted only to an executor, as a probate can only be applied for and granted to a person who has been appointed as an executor under a Will by the testator. If a Will does not provide for an executor, the legal heirs have to file an application for a Letter of Administration in a Court of law having competent jurisdiction, which will grant the same rights to the beneficiaries that an executor would have facilitated.

Since the task of an executor is based solely on trust, ideally, the executor chosen should be an ethically upright person. While you can have any blood relative be the executor, it is advisable that the person should not be a beneficiary of the Will and should be younger than the testator to reduce the chances of the executor dying before the testator.

But where is the Will?

There have been circumstances wherein with all good intent a Will has been written, yet no one can find it or the person who has found it, reads it and since it doesn’t serve their own purposes, chooses to not disclose it. Solution – Keep the Will in a safe but accessible place and let a close confidante or your lawyer, if you have not appointed an executor, know that a Will has been written by you so that they know it needs to be found!

How many times can a testator change my mind?

As long as you are of sound mind, you can revoke your Will as many times as you want. Just keep in mind to follow all the required essentials, mention in the latest will that your last Will (with the date of the last will) is revoked and tear/ destroy the previous Wills.  

In case you want to make any additions to your existing will, a codicil can be created, which is a legal document that acts as a supplement to your Will. Thus, making changes to your Will without having to rewrite your entire original Will.

What is a Living Will and how is it different from the other types of Wills

In 2018, the Supreme Court allowed “living wills”, which essentially deals with passive euthanasia. It means medical treatment can be withdrawn to accelerate a person’s death if strict rules are followed.

In simple terms, the difference between a Will and a Living Will is that a Will takes legal effect upon death and a Living Will provides instructions about the medical treatment the person does and does not wish to endure, should the person be incapacitated.

Two of the most extreme emotions – love and despise, irrespective of past kinship, for the departed soul and decided heirs, are truly on display as soon as the simple question of inheritance reaches its finality. As a member of a family, no matter how divided by the difference of opinions or lifestyle, the nonexistence of a Will can tear families apart or bring them closer than ever. But the simple task of a well written clear Will leans more towards blessed memories and harmonies co-existence since it is truly your last wish rather than a decision by the law of the land.

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