Will… You Must!
All you need to know about making a document that speaks for you after you’re gone.
‘Main Na rahoongi, Tum Na rahoge, Phir Bhi rahengi nishaaniyan’ sang Mukesh and Lata in the Raj Kapoor classic Shree 420. Nobody knows what happens when we die, but for those left behind, the mourning comes with painful red tape and documentation. Is there something that could make this easier? That is a difficult question to answer but you have a legal provision to leave behind instructions to deal with your property in the event of your death — a will. A will may ease some of the legal processes that follow the death of an individual.
You may feel that your family should share the property equally, without any conflicts or you may feel your property is not substantial enough to warrant a will or you may not want to force your family to courts by leaving a will behind. The only way to make sure your hard-earned property is handled as per your wishes is to record it in a will irrespective of its size or value. Lack of a will does not avoid legal hassles, but may actually increase complications for your heirs, leaving space for ambiguity and false claims on your property. A will avoids any confusion that could be caused by ‘he said she said.
By definition, a will is a legal document prepared by a testator (an individual) to freely bequeath his/her assets as per their wishes. Any individual above the age of 18 years can make a will as long as he or she is of sound mind. A will can be simply written out on paper or can be oral as well. However, certain measures can be taken for it to be watertight.
- Living wills are a relatively new concept that allows a person to choose a dignified death. They come into force while the person is still alive but is unable to communicate his/her wishes. It reduces the emotional burden on the family when making difficult medical decisions for their ailing loved one. It is an advanced directive toward preferred medical treatment and/or withdrawal of life support.
- They are recognised in India since 2018.
- Any person above the age of 18 and of sound mind can make a living will.
- The living will have to be voluntarily executed and should specify when medical treatment should be withdrawn or no specific treatment should be given (when it may only delay death). The will should also authorise a guardian/relative to give or refuse consent to the medical treatment as set out in the will.
- A living will be signed by the executor in the presence of two witnesses and should be countersigned by a jurisdictional Judicial Magistrate of First Class (JMFC). The JMFC will inform the family of the living will and will hand over a copy to the family physician if any.
- The living will comes into effect if the executor is terminally ill and is undergoing prolonged medical treatment with no hope of recovery. The treating physician then shall act upon the same after verifying the authenticity of the document with the JMFC.
- The living will be revoked or altered at any time as long as the executor has the mental and physical capacity to do so. The procedure to alter or withdraw a living will is the same as preparing it.
To prepare a will:
- A list of properties owned by the testator (the person writing the will) including moveable (cash, jewellery, bank accounts), immovable (land, flats), tangible and intangible (copyright, digital assets) assets.
- Two attesting witnesses above the age of 18 will be able to prove the validity of the signature on the will.
- An executor — a trusted individual who ensures the property is distributed as per the will.
- Beneficiaries — those who will inherit your property according to your wishes.
Consider this before writing a will :
- The will should be written in simple language.
Choose a person you and your family trust to be an executor. It is advisable to find a person who is younger (hence more likely to outlive the testator). You may appoint joint executors.
List your assets clearly along with the bequests.
The contents of your will are confidential. The witnesses only have to verify that you signed the document yourself, freely.
What should a will contain :
- Include an exhaustive, descriptive list of assets and investments. This ensures that the family doesn’t have to struggle to find this information. Be clear about who inherits what and how much.
The testator must mention that he/she is of sound physical and mental health at the time of preparing the will. Ideally, a medical certificate should be attached as proof.
Include an absolute beneficiary — a person who inherits the property in the rare and unfortunate scenario that all the beneficiaries are dead at the time of the testator’s death. This is to ensure that the property doesn’t lapse to the government in the absence of beneficiaries.
Be sure to include a rest and residue clause that takes into account any properties that may have been left out of the will or may come to the testator after the preparation of the will.
If the testator has sought help from someone to type or write the will, it is advisable to mention the name of the said person. Mention the place where the will was prepared and the number of pages in the document. Also, state the names of attesting witnesses.
A few precautions:
- If your children and spouse are going to inherit a major portion of your assets, avoid involving them in preparing of the will. Beneficiaries should not be the attesting witnesses of the will.
You can include a clause that disinherits anyone who contests the will.
Make sure your attesting witnesses are of sound health and are trustworthy. They may be required to testify in court in the event that your will is contested.
Register the will at the local registrar’s office. Although this is not mandatory, it helps your heirs prove that you created the will. Remember that whenever you make a new will or amend the will, it has to be registered as well to avoid confusion. You can leave behind a letter mentioning the number of copies and their storage location for ease of discovery.
Store the will in a safe place like a locker or a safe that may be opened upon your demise. Although you don’t have to inform your family of the contents of the will, depending on your circumstances, you may inform them where the will is being stored.
Your will only comes into force after your death. You can change it as often as you need to while you’re alive. Revisit your will after major life events (birthdays, weddings, birth of children/grandchildren) to keep the will relevant. You don’t have to make a brand new will to update it, a codicil or a supplement to the will can be made to reflect any changes as per your wishes. The process to make this codicil is similar to that of making the will.
Thinking about one’s own death and creating a document that speaks for you when you no longer exist may feel a bit morbid. However, it is essential to undertake this exercise to ensure that your hard-earned property is dealt with as per your wishes. A will also make it easier for your family to handle the paperwork after your death and may reduce the chances of expensive and painful litigation. And to quote an age-old proverb – Where there is a will, there is a way. Your will could show your family the way forward after a devastating loss.
The author is one of the most experienced corporate lawyers in India.
As told to Shakti Salgaokar
DISCLAIMER: We have included as much information as possible in this article. However, you must consult a lawyer before making a will.
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» By Ravindra Kulkarni. With inputs from Aditi Sharma