Why Make A Will?

If you talk to people about making a will, chances are that they would either feel that you are after their money or are expecting their death soon. But consider that in a country like India, which is full of RajGharanas, or blue-blooded lineage, inheritance battles have become a norm. No wonder the country has witnessed many bloody legal wars for inheritance, including those in the Birla and the Ambani families.

This sort of feud results out of future scenarios that we fail to foresee during our lifetime. Often, people nominate someone with respect to their financial assets and expect that it will be passed to their heirs legally, without any issues. If you are also thinking on the same lines, then you are certainly living in a world of fantasy. Merely nominating someone isn’t the answer – it is imperative that you create a will to distribute your wealth in the manner that you wish.

“I would say that along with making arrangements for family members, a person should also fulfil his/her obligations for those who have been associated with him/her for long. For example, while planning a will, you can also give something to your driver, servant or any other person who has been with you throughout”, says S S Pai, Founder, Make A Will Foundation (a group of volunteers who promote social awareness regarding succession planning.) Pai explains, “A will is a sensitive topic to open up to. In India, people are not comfortable discussing a will. However, all apprehensions disappear when I tell them the consequences of not making a will.”

Will To Perfection

People wish to make a perfect will to avoid conflicts in the family. So, what exactly is the perfect will?

“It is very difficult to define a perfect will, as the law does not have any definition for it. There is no set format either. However, to make a lay person understand, a will should be written in such a manner that it is easy to read, and has no ambiguity. It should be specific and to the point, written in accordance with the laws of the land and also the personal laws, if any. Last, but not the least, it should have a proper date, and should be registered with the appropriate authority”, says Vanya Vida, a practising lawyer.

Rakesh Khanna, Managing Partner, R K Law Offices, a New Delhi-based law firm has this to say, “It is indeed very difficult to define a perfect will. Any will can be challenged legally. However, it is suggested that a person must write a will in the presence of two witnesses, and in a healthy state of mind. If challenged in the court, these witnesses would be able to prove the legality of the will. It is also advisable that you must write the will in the presence of a doctor, who could later testify that the will was written by the testator in a healthy mental state.”

Kinds Of Wills

• Privileged and Unprivileged Wills

• Wills executed according to the provisions of Section 63 of the Indian Succession Act, 1925 (the Act), are called Unprivileged Wills. There are also certain special and classified persons who can draw up their own wills, termed Privileged Wills, under Section 66 of the Act.[PAGE BREAK]

Conditional or Contingent Wills

A will may be expressed to take effect only in the event of the happening of some contingency or condition. If the contingency does not happen, or the condition fails, the will is not legally enforceable.

Joint Wills

A Joint Will is a testamentary instrument, whereby two or more persons agree to make a conjoint will. Where a will is joint, and is intended to take effect after the death of both testators, it is not enforceable during the lifetime of either. Joint Wills are revocable at any time by either of the testators during their lifetime, or after the death of one, by the survivor.

Mutual Wills

A will is mutual when two testators confer reciprocal benefits upon each other, by either of them constituting the other his/her legatee. However, when the legatees are distinct from the testators, there can be no position for Mutual Wills.

Concurrent Wills

Generally, a person should leave only one will at the time of his/her death. However, for the sake of convenience, a testator may dispose of some properties in one country by one will, and the other properties in another country by a separate will.

Sham Wills

If a document is deliberately executed with all due formalities purporting to be a will, it is still treated as not being in existence if it can be shown that the testator did not intend it to have any testamentary operation, but was to have only some collateral object. It must be kept in mind that the intention to make a will is essential to the validity of a will.

Holograph Wills

Holograph Wills are written entirely in the handwriting of the testator. The next important and desirable step in the preparation of a will, is the registration of the will with the relevant authorities. Although not compulsory, it always helps at a later date, where there is a probability of a conflict or confrontation among the legatees. Once this is done, all you have to look for is the practical applicability of the will coming into force, and happens posthumously for those executing a will. This begins with probating the will in a court of law.

What Is A Probate?

Probate means a copy of the will certified under the seal of a court of a competent jurisdiction. A probate authenticates the validity of the will. It acts as a safeguard, and strengthens the will under the court of law. Section 213 of the Indian Succession Act, 1925, provides that an Executor or Legatee cannot establish his/her right under a will in any court, unless a probate of will is obtained. Further, as per Section 57 of the Indian Succession Act, 1925, a probate of will is necessary in case of wills made by any Hindu, Buddhist, Sikh or Jain; where such wills are made in territories subject to the Governor of Bengal, or within local limits of ordinary civil jurisdiction of the High Courts of Madras and Bombay. It acts as a tool or a mechanism to check the genuineness of the will.[PAGE BREAK]
The cost for probate is prescribed under the Court Fees Act. Most states have their own Court Fees Act. Therefore, the cost varies from state to state.

Keep It Clean

Your will should be properly typed, with double spacing. The individual words should stand out clearly. There should be no overwriting, whether between lines, i.e. interlineations, or in the margins. If you find that you have left out a particular word or sentence, it is better to have the page re-typed. Similarly, no words should be scratched out or obliterated.

Selecting Your Witnesses

You should not be casual about selecting the attesting witnesses for your will. Two important factors you should bear in mind while selecting your attesting witnesses are:

i) The attesting witness and his/her spouse must not be beneficiaries under the terms of your will. In such a case, the validity of other legatees and what they are supposed to get under the will are not affected, but the bequest in favour of the witness and his/her spouse would be rendered invalid. The overall validity of the will itself shall not be affected if the person attesting the will is a beneficiary, or his/her spouse is a beneficiary.

ii) It is desirable that the witnesses should not be very old. Since your will could remain in effect for a number of years, you should preferably choose a witness some years younger than you are. They must, of course, have attained the age of majority. If the attesting witnesses are younger than you are, there would be a greater likelihood of at least one of them outliving or surviving you.

Must A Will Be In Writing?

Muslims are permitted by their personal law to make an oral will, it need not be in writing. However, in the case of all other religious communities in India – Christians, Sikhs, Jews and Parsees – the general rule is that for a will must be written for it to be valid. The only exception provided under the law concerns members of the Armed Forces who are employed in an expedition or engaged in actual warfare, and mariners at sea. Such people are permitted to make an oral will, and such a will is known as a Privileged Will.

A will can be made on any plain sheet of paper. It is a false notion that a will must be executed on stamp paper. Practical considerations suggest that you use a paper of durable quality, in order that it does not tear easily on handling.

If you wish, write the will in your own handwriting using a ball pen or a fountain pen. A handwritten will is known as a Holograph Will, and is equally valid in the eyes of the law. However, in the case of a handwritten will, some confusion may be caused by illegibility. For a document as important as a will, it is generally advisable to have it typed. The paper should have wide margins on both sides, as with the passage of time, the paper may get torn or mutilated at the edges.[PAGE BREAK]

Points To Remember When Making A Will

If possible, have the two witnesses be a doctor and a lawyer. A doctor signing a will precludes any question of you being of unsound mind. The lawyer can vet the will, and make sure you don’t make avoidable mistakes at the time of writing and signing it.

Note that you should keep one more copy of the will, and store it separately from the original will. The will must be stored very safely. Make it a point to inform your next of kin as to where you have stored your will. Do not make many copies of your will.

In case of Hindus, it should be clearly stated if the property is inherited or not. It makes a huge difference, as no ancestral property can be assigned to any person through a will. All rights on inherited property are acquired by birth.

A will must always be dated. If more than one will is made in the same country, the one with the latest date nullifies all the previous ones. In fact, there should be a statement in your will nullifying any/all other previous wills. The pages should be numbered, to avoid fraud.

The value of assets often fluctuate, so it is better to mention how much each beneficiary is bequeathed in percentage terms, rather than as absolute numbers. Unless of course, it is pure cash.