A will is an extremely sensitive matter for many of us. Often, we hear in India about the struggles that the family of a deceased one goes through post-demise. From long-drawn court litigations, and family squabbles to surprise claimants, we have seen it all. And yet, if someone suggests making a will to smoothen this process, we take affront. It is almost like jinxing it; as if something would happen to us if we make a will.
It is a sensitive matter, no doubt. While making our will and estate planning, we face this reality and start thinking about our post-death scenario and distribution of our wealth. And perhaps, many of us are not ready to do that. We also want to play the fool and believe that everything will be alright. If someone else suggests it, we may also doubt their intentions and wonder if they are waiting to see us go. It is good to believe that there is still a lot of time left, that things will smooth out even if there is no will, etc.
Especially in India, making a will to bequeath properties post our death is still not a popular concept. Many believe that it is a costly and cumbersome affair and meant only for the super-rich. However, drafting a will may well be the best way to show your loved ones that you care, even after death. It ensures a smooth transition of the assets to the designated beneficiaries without any hassles. It also guarantees peace of mind and no ambiguity on succession issues. It saves time and money for all involved.
What is a Will?
According to Indian laws, a will or a testament is a legal document by which the person executing the will, clearly states the intention to bequeath the assets to one or more persons of choice. The will should mention all movable and immovable assets of the person making the will (testator). The two types of will that may be made are privileged will and unprivileged will. The privileged will is only made under some special circumstances and only allowed by law for (a) Soldier/airman employed in an expedition or engaged in actual warfare and (b) mariner at sea. Considering the extraordinary circumstances, it need not be in writing. If it is in the person’s handwriting, it does not need a signature or witnesses.
An unprivileged will is made by a person who cannot prepare a privileged will, and it will have to be in writing, signed duly by the testator in the presence of two witnesses. The witnesses too should sign in the presence of the testator, and it can be made on a simple piece of plain paper in the person’s handwriting. This kind of will does not require any legal person’s help.
Why should I make a will?
In India, it is not mandatory for a person to make a will. However, that does not mean it is not necessary to make a will. Those who are putting off making a will should also wonder why they have taken out life insurance policies. Insurance policies are a way of showing we care for our families in the untoward incident of our death happening. It does not mean that we are inviting our death. A will may also be considered similarly. We are certain to die; through a will, we are ensuring that our family does not suffer, to settle our estate post our death.
Unlike what many think, making a will is a simple matter. It does not take much time or money or running around in court or government offices. Anyone can draft a will provided they are above 18 years and of sound mind. There is no requirement to know any legal language to draft a will. The language should be clear enough to make others understand what the intentions are.
While drafting a will, it is best not to leave things to chance or give rise to any 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 reviews. 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 too much trouble.
Types of will
A will need not be in writing and you need not have a legal or a formal will. However, the more valid and clear a will is, the less the hassles are to execute it. Here are a 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 a 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 may happen. It is better to have a holograph will than not have one at all.
Formal will: A formal will is typewritten and duly signed by the testator and two witnesses. You do not need a lawyer or the involvement of a court for creating a formal 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 the property after one spouse/partner dies and also what happens after the other person dies. The will remains valid for as long as the second person is alive. A joint will is 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 death and maybe something else.
A will can be a simple will, wherein the testator without listing out any assets states that all assets be bequeathed to someone. It could also be a comprehensive one wherein the testator lists each asset and to whom it is bequeathed, mentions an executor with witnesses, etc. The will can also be registered in the sub-registrar’s office to avoid any issues.
When should I make a will?
Since death is the only certainty in life, there is nothing like a good time to make a will. It is best to make a will as early as possible, especially when one has acquired some wealth and properties and has a family. We hear of so many young people in their 30s or 40s dying of heart attacks or accidents. The presence of a will in such cases is helpful to avoid conflicts between surviving family members like spouses/partners and parents, etc. Hence, if you haven’t already gotten around to making a will, perhaps, this is the best time to do so. The best time to make one is always NOW.
How can I make a will?
Based on the above inputs of the different types of will, you could choose to make any one of your choices. However, as processes go, it is best to get a formal will done with witnesses and also get it registered. Ideally, the will is a confidential document that others should only get to read when the testator is no more. It is usually kept safe by the testator, usually in a locker.
However, a person may inform the beneficiaries about the will and hand it over to one such person or a third party for safekeeping. This person is expected to act as the custodian of the will, and ensure its adherence. If the will is registered, then the beneficiaries can obtain copies from the registrar’s office post the death of the testator. Registration reduces the chances of the will being contested, and the execution becomes easy.
Registration reduces the chances of the will being contested and the execution becomes easier. There are also online will-making services provided by companies such as Aviva Will Writing Service, WillJini, Willstar, EzeeWill, Legaldesk.com, and a few more.
What should I include in a will?
A person can only include assets owned by self in a will and cannot bequeath something belonging to the spouse/partner or include any ancestral property. The various assets that can be included are movable and immovable properties, cash, jewellery, bank accounts, fixed deposits, furniture, insurance policies, vehicles, stocks, shares and mutual funds, any valuable paintings and antique items, electronics, intellectual properties, pets, etc. The date and place of the will execution also should be included to ensure that any other pre-dated claims become null and void.
A testator 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. Beneficiaries in a will can be individuals, organizations, charities, trusts, and foundations, etc. 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 matters clear. A will can also include income in the future foreseen at the time of creating a will.
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 a position to make that decision. It’s considered important to make provisions in the will in case you are suffering from a terminal illness, or if you’re not in a state to make decisions due to a medical condition. It is legal to make a Living Will in India, according to a landmark judgment delivered by the Supreme Court in 2018. By doing so, you can decide what course the treatment should take for you, if you want it to be withdrawn if certain conditions are met, and other such important decisions by appointing an executor to take health-related decisions on your behalf.
- Unless I have too many assets, I don’t 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.
- 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. They only become a 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.
- Making a will is a tedious process: As explained above, it is not a tedious process, and one could write a will on a plain sheet of paper. There is no template or format required to create a will.
- I cannot afford to pay a lawyer to make a will: No lawyer or court involvement is needed to make a will.
- 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.
- 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.
- A will cannot be changed or revoked: A will can be revoked or changed at any time as per the testator’s wishes.