The Will

A few months back I wrote about  THE WILL (https://dailyhappenings.in/understanding-will), which is a document to be made by a person stating that after his/her demise, who will get their assets?

Here are some important information/ tips regarding the making of the will:

While drafting a will, it is best not to leave things to chance or give rise to ambiguity. That would mean listing out all assets to the would-be owners by name. A will should be made with ample time in hand with proper views. If you live long after making a will, it is best to review and modify it if required to reflect any changes. When there is a will, it supersedes all other claims. Hence it helps the rightful owners to claim what is left to them in succession without much trouble.

A will need not be in writing and you need not have legal or a formal will. However, the more valid and clear a will is, the less the hassles are to execute it. Here are few different types of wills prevalent in India.

Oral will: These are valid in certain states under some special circumstances like making it on a death bed, etc. However, these are always up for challenges, can be termed ambiguous and hence are uncertain. They are applicable only for personal property, and it is always better to plan and make a formal will.

Holograph will: A will handwritten and duly signed by the testator is called holograph will, and need not have witnesses. However, such a will may create some issues since the court has to verify the handwriting. Also, there is scope for contention, and some legal hassles my happen. It is better to have a holograph will that not to have one at all.

Formal will: A formal will is typewritten and duly signed be the testator, and two witnesses. You do not need a lawyer or the involvement of a court for creating a will.

Joint and mutual wills: A joint will is made by two or more people to hand over their assets to the intended beneficiaries. It states what happens to te property after one spouse/partner dies and also what happens after the other person dies. The will remains valid as long as the second person is alive. A joint will be executed when someone wishes to ensure that the property is given to the spouse after one’s death and then to the children.

A mutual will is made by two people with reciprocal benefits. If one dies, the other becomes the beneficiary as the will, comes into effect. A mutual will is also referred to as a mirror will or reciprocal will. While a joint will cannot be changed after one spouse/partner dies, a mutual will can be changed by the surviving individual.

Conditional or contingent will: to draft a conditional will a lawyer is needed as it involves some legal language. This kind of will comes into effect upon a certain condition coming into effect. This condition or event is not just the testator’s and may be something else.

In reality each and every person who holds some assets in his/her name should make a will. Based on the above inputs of the different types of will, you could choose to make any one of your choices. Ideally, it is best to get a formal will done with two witnesses and also get it registered. In practice, the copy of the will, after making is handed over to one person who is the custodian of the will, and he ensures its adherence. Registration reduces the chances of the will being contested, and the execution becomes easy.

A testator (person who is making a will) can also mention any debts that need to be paid out of the bequeathed properties. Any assets allocated to minors should also have a guardian mentioned till they become adults. If you are bequeathing assets to someone other than your legal heir(s), then it is best to have a formal and registered will that makes matter clear.

What about a living will?

A living will is a healthcare directive, in which people can state their wishes for their end-of-life care, in case they are not in position to make the decision. It is legal to make a Living will in India, according to landmark judgment delivered by the SC in 2018. By doing so, you can decide what course the treatment should take for you, if you want to be withdrawn if certain conditions are met, and other such important decisions by appointing executor to take health-related decisions on your behalf.

Common Myths relating to the Will

1 Unless I have too many assets, I  do not need a will– Often, we have seen that issues crop up in a family for a house, cash, or jewellery. It is best to avoid this, even if by making a simple will.

2 I have nominations for all assets so I don’t need a will– It is a myth that nominations are a replacement for a will. Nominees only become custodian/trustee of the said asset and not owners of the said asset. Especially if the nominees are not the legal heirs, there could be legal hassles in getting things sorted post someone’s death.

3 Making a will is tedious process– As mentioned earlier, it is not tedious process, and one could write a will on a plain paper. There is no template or format required to create a will.

4 I can not afford to pay a lawyer to make a will– No lawyer or court involvement is needed to make a will.

5 A will should be made only in English– A will can be made in any language of one’s comfort and need not be in English.

6 My wealth will be distributed equally even if I do not make a will– The personal law of succession comes into effect if there is no will created. Hence, the distribution happens based on that and may not be equal among the children as thought by many.

7 A will can not be changed or revoked– A will can be revoked or changed at any time as per the testator’s wish.

So in the end, making a will is very important, so that your legal heirs/successors may not face any problem after your death.

Waiting for your feedback on this blog.

Anil Malik

Mumbai, India

19^th June 2024