Planning for one’s life is perhaps far easier than planning for succession. With an assortment of assets and intricate family dynamics, the importance of a will cannot be emphasised enough in these times.
A will, or a testamentary instrument in legal parlance, is the declaration of intention of a person (testator) with respect to his property, which he desires to be carried into effect upon his demise.
The greatest incentive for drafting a will is the control it grants the testator to bequeath his assets. In the absence of a will, the property of an individual devolves as per the default rules of intestate succession, without considering the owner’s desires. A will is also the best way to convey one’s last wishes with respect to obsequial ceremonies, appointing guardians for minor children, making donations etc.
Historically, a will was effective only on the demise of the testator. However, for the limited purpose of conveying one’s wishes with respect to withdrawal of medical treatment or restricting medical treatment, a person may draft an ‘advance medical directive’ or ‘living will’.
The Supreme Court of India recently legalised passive euthanasia by giving legal sanction to an ‘advance medical directive’ or ‘living wills’. In such documents, the testator can convey the steps to be taken by his nominee in the event of terminal illness or prolonged medical treatment, and if he becomes incompetent or unable to communicate at such time.
Form and Format
Contrary to popular opinion, there is no prescribed format or language that a will must adhere to. Wills are also exempt from the complexities of stamp duty and registration, which makes executing a will extremely cost effective. As for the few legal requirements for the execution of a will, the testator must have legal capacity to execute a will (example: sound mind; voluntary execution, without coercion) and have legal title to the assets he wishes to bequeath under the will. Further, the will must be attested by two witnesses who have seen the testator and each other. With respect to living wills, the SC has specified certain additional requirements.
An important point to note is that a will is not free from challenge and proving the validity of a will may be become an uphill task if it is not carefully drafted, especially since the testator is not around to explain or clarify his intent and wishes.
Prove It In Time
On the death of the testator, the executor must ensure that the property is distributed in accordance with the will. However, the right as an executor or legatee (person receiving a bequest under a will) can be asserted only once a court of competent jurisdiction has granted a probate (certificate of authenticity of a will) or letters of administration of concerned the will. A probate is a certificate from a court of competent jurisdiction of the legality and correctness of the will. Wills made by persons of Islamic faith or Indian Christians do not require probates. Further, wills by Hindus, Buddhists, Sikhs, Jains and Parsis require probate only if they are executed in or relate to immovable property situated in Mumbai, Chennai or Kolkata.
In probate proceedings, a copy of the will is certified under the seal of the court and rights of administration of the estate of the testator are granted.
Challenges to Wills
Keeping aside its legal importance, a will being an embodiment of the last wishes of the Testator carries with it an array of sentiments. This also makes wills prone to challenges in courts. Often, wills have been challenged based on presence of ‘suspicious circumstances’ such as exclusion of a close family member from the list of legatees, mismatch in signatures, unnatural language of the will etc.
While there is no fool-proof method of ensuring that a will is never challenged, it is advisable to adopt mechanisms such as video-recording the execution process, medical certification of the sound physical and mental state of the testator and registration of the will etc.
One must be mindful of the below considerations while drafting a will:
Crafting a Will Testator’s details: accurate details of the testator such as his name and age should be recorded. Assets: assets bequeathed under the will should be elaborately described under specific categories such as immovable property, shares, digital assets, jewellery etc. Legatees: names of the legatees with details sufficient to identify such legatees should be mentioned and the exclusion of a near family member should be justified to avoid suspicion. Enlisting every asset owned by a person in a will is a daunting task and may lead to the unintended omission of certain assets from the Will. It is thus advisable to nominate a person as the ‘residuary legatee’ who shall be entitled to receive the property of the testator that hasn’t been accounted for under the will or may accrue to the testator after his demise. Further, an attesting witness or his/her spouse should not be named as a legatee. Executor: a trusted person should be named as the executor of the will, after obtaining his consent. Nominating a younger person is advisable owing to the possibility of such person outliving the testator. Others: It is advisable to make a holographic will, i.e. in the handwriting of the testator. In case of a typed will, it should be in a language that the testator is fluent in, else an averment should be included in the will that it was translated and read over to the testator. The will must be dated and stored with trusted persons and kept by the testator in a location where it is both safe and easy to locate.
The testator, as an author of a will, has ample freedom under Indian law to customise the will to his liking. Wills are an age-old tool used for succession planning and continue to be the trusted choice, even today. Thus, keeping aside the grim morbid feeling of one’s inevitable demise associated with drafting a will, it is in the interest of every individual to draft a will and update it regularly.
Anuj Shah is partner and Krutika Chitre associate at Khaitan & Co.