Writing a will?

Avoid these 8
mistakes
Find out where you can go wrong during
estate planning and what you should do to
ensure that your assets are passed on
smoothly to your heirs.
BY RIJU MEHTA
Where there’s a will, there’s usually someone ready to contest it. Where
there’s none, someone is ready to fight over the inheritance anyway. This
may be true considering that in 2015-16, nearly 66% of the civil cases
being fought in 170 district courts across the country were over land and
property matters, with as many as 52.7% cases being fought only among
families. According to the survey by Daksh, a Bengaluru-based civil society
organisation, people are also ready to spend huge sums and time to fight
these cases.
Does this mean that writing a will is an exercise in futility? “No, it is
not. While law allows a person to voice concern over a person’s
inheritance, if a will is made properly, the objection can be dismissed
easily. Moreover, a will considerably reduces the chances of litigation and
gives the rightful owners a chance to enjoy their share of inheritance,” says
Rohan Mahajan, Founder & CEO, LawRato.com.
A will, does indeed, reduce considerable expense, effort and tedious
paperwork, not to mention disputes within the family over movable and
immovable assets, after a person’s death. Despite the evident benefits of
having a will, people do not prepare one either out of reluctance to deal
with their own mortality, or presumptions about the painstaking process it
entails. While the writing of the will itself is a simple task and can be done
on a plain piece of paper, it is best to do it under legal supervision. This
means that you should either consult a lawyer or prepare an e-will through
online will-makers. “This is because, on your own, you are likely to
overlook many details that can result in legal battles,” says Mahajan.
“Worse,” says Raj Lakhotia, Founder, Dilsewill.com, an online will-
maker, “you will find out that the will is invalid or that there is a mistake
only when it is challenged in the court.”
 In fact, there are various mistakes that one can make, ranging from
technicalities involved in the drafting of the will and listing of the details
about inheritance, to the manner in which the will should be executed or
unsound decisions about distributing or disposing of assets. Each of these
can cause significant problems for your heirs. Whether you are drawing up
a will on your own or taking legal help, we list eight instances to make you
more aware about the process and help you eliminate mistakes and
minimise the chances of disputes.
1
Not having a will
THIS IS PROBABLY THE biggest mistake when it comes to estate
planning. Nobody quite believes they are going to die or that they need to
make a will yet, no matter what their age. However, this is one step that
needs to be taken as soon as you hit your 50s, or earlier if you have
multiple assets and properties, especially if you anticipate trouble over
your inheritance. “My father was only 55 when he died of a heart attack
and he didn’t leave a will. Since he had failed to appoint a nominee for any
of the bank accounts, investments or properties, we had to spend a large
amount of time and money fighting for our own money,” says 23-year-old
Viresh Verma from Delhi. The family ended up spending nearly two years
and ₹16 lakh to claim their property due to the absence of a will and
nominations.
More time and higher expenses: The legal heirs will typically have
to spend large sums to acquire mandatory documents like a succession
certificate or letter of administration in order to transfer titles, cash,
investments, assets or properties, not to mention paying the prohibitive
lawyers’ fees. A succession certificate is required in the case of a movable
property by applying to the high court or magistrate. The letter of
administration is needed in the case of an immovable property and is also
issued by the court. While having nominees helps with the immediate
transfer of cash and certain movable assets, you still need the legal
documents because, technically, a nominee is only a caretaker of assets
and will eventually have to pass on these to the legal heirs.
Undesirable distribution of assets: A will enables you to decide
which asset you want to give to which heir, in what proportion and,
without one, you have no power over who inherits your assets. “If there is
no will, your financial plan will be of no use,” says Lakhotia. “Suppose you
wanted your minor daughter to have ₹1 crore for higher studies. Not
leaving a will means this amount may be distributed among, say, five legal
heirs, and she will end up with only ₹20 lakh,” he says.
Adds Jasmeet Singh, Advocate, Delhi High Court: “The whole purpose of
making a will is that you want to interfere with the normal line of
succession.” Without a will, the court will follow the provisions of the
succession law because it doesn’t know how you wanted to distribute your
assets.
Succession laws enforced: Without a will, the assets will be
distributed as per the provisions of the Succession Act (see If one dies...) as
per your religion. For instance, Hindus, Buddhists, Jains and Sikhs are
governed by the Hindu Succession Act, 1956, and Hindu Succession
(Amendment) Act 2005.
2 Drafting the will incorrectly
YOU CAN draft the will either on your own, through a lawyer, or via any
of the online will-makers. The important thing is to get it right (see Sample
will). “I did not know any lawyers, so I researched online and got it done
through a will-maker,” says Faridabad-based Shailesh Nigam. If any of the
details are not precise or you get them wrong, the will can be easily
contested in court.
Make sure you enter all the essential personal details, including name,
address, place and date, correctly; put in the full name and relationship of
beneficiaries; mention the assets precisely; have it done in the presence of
two witnesses; and sign it along with the witnesses and their details. “The
most important aspect of a will is a valid signature of the person making it.
Since a will can be written on a blank paper, the signature is the only
authentic detail in it,” says Mahajan.
Equally important are the three declarations—that you are revoking all
earlier wills, that you are of sound mind, and that you are not making the
will under any undue pressure. If a person is very old, it makes sense to
attach a doctor’s certificate certifying his mental health and sanity.
You could also register the will, which essentially means going to the
sub-registrar or registrar of the district court under whose jurisdiction a
major part of the property lies. Though a registered will doesn’t have any
particular sanctity, it offers a certain degree of authenticity since it has
been approved by a government official. Remember, that a registered will
can be as easily challenged as a non-registered will. “Both my
grandfather’s as well as uncle’s wills were registered, but my paternal
aunts still contested it over the property that was willed to my father,” says
Anshika Mathur from Noida. The case has now continued for seven years
and there seems little hope of it being resolved any time soon.
So should one have the will registered or not? “Registering the will
minimises the grounds on which a will can be challenged. Since soundness
of mind, forged signatures and drafting under coercion are common
grounds for challenging a will, a personal visit to the registrar, interaction
with him and being photographed, bring down the possibility of it being
contested on these grounds,” says Singh. So, it is advisable to get the will
registered.
3
Not being specific & detailed
WRITING A SPARSE, vague will is another error that can be easily
contested and exploited. “The will should be extremely detailed to avoid
any future confusion and dispute among family members,” says Mahajan.
To make your will precise, ensure that you list all your assets, movable
and immovable, in great detail. “Make your will as specific as possible.
Mention each and every bank account, locker numbers, or property
details,” affirms Singh.
This means that you mention every bank account, with the number,
bank name and address. Similarly, for investments and insurance, list the
scheme name, number, financial institution, and insurer, along with the
addresses. For more than one property, distinguish each one clearly by
listing dates of purchase, addresses, taxes paid, etc.
As for heirs, don’t forget to mention the full name and your relationship
with the specified person, as well as the assets you want to pass on to
them. Don’t use nicknames or other details about the person that cannot
be verified officially. Doing so can create unnecessary confusion.
4 Not updating the will
DON’T THINK your job is over once the will is made. If there is any
alteration in the status of either assets or heirs, you should draft another
will to incorporate the changes. There is no limit on the number of times
you can update the will. Any lifestage development, such as the birth of a
child, marriage or divorce, will call for a redistribution of assets. Similarly,
if any asset has been sold or new ones bought during the testator’s
lifetime, these will have to be removed or included in the list as per the
owner’s wishes.
For Nigam, who is self-employed, this is a real possibility because he is
only 47 and has two kids, one of whom is a minor. “If there is a change in
my assets, which is very likely, I will update the will,” he says.
Updating is not very difficult. All you have to do is to draft a new will,
including a declaration that it is your final will and revoking all other
previous wills and codicils (this is a document executed by a person who
had previously made a will, but wants to modify, delete or revoke it). Put
in the changes as desired and have it witnessed and signed as in the case of
your earlier will. You should also register the updated will, rendering the
previous one invalid. This doesn’t, of course, mean that the unregistered
will shall not be considered by the court, since as per law, the last drawn
will is considered whether it is registered or not.
5 Not appointing the right executor
THIS IS A VERY common mistake among those making a will as they
either appoint people who are in the same age group or someone who
doesn’t have their best interests at heart.
“People tend to appoint as executors relatives, friends or those in the
same age bracket, instead of selecting younger people,” says Singh.
“Another common mistake is appointing minor children as executors,”
says Mahajan.
“One must ensure that the executor is the best choice for the time-
consuming and complex job. He or she must be trustworthy, know about
your wishes, and work according to your will, not his own,” he adds.
To ensure objectivity and avoid any vested interests in execution, you
could also have a third-party administrator for your estate, as did
Mumbaibased Kapil Srivastav, who has recently had a will drafted for his
mother through a lawyer. “We didn’t want any relatives as executors and,
for a nominal amount, we have appointed a third-party executor to avoid
conflict of interest,” he says.
6 Passing on assets to minor children
IF YOU HAVE minor children to whom you want to pass on your assets,
make sure that you appoint a guardian for them during the drafting of the
will. If there is no guardian and the minor child gets the assets when you
die, the court will typically get involved, especially if the inheritance is
significant.
If a guardian is nominated, he can act as a caretaker for the minor’s
assets till he becomes an adult. A parent can easily nominate the other
parent as a guardian in case he/she passes away. Grandparents or other
close relatives can also be appointed as guardians.
Doing so is also important because though minors can be on the title,
they cannot conduct business in their own names. “If no guardian has
been appointed, and the owner’s signature is required to sell, finance or
conduct other business transactions, the court typically gets involved to
protect the child’s interests,” says Mahajan.
Nigam clearly understands the significance of this move since one of his
children is still a minor. This is the reason he has rightly appointed a
guardian for his child.
7 Gifting assets during one’s lifetime
MANY PEOPLE believe that the best way to avoid family disputes over
inheritance is to gift away as many assets as possible during their lifetime.
“This can be a double-edged sword,” says Singh. “If you gift an asset, say a
property, while you are still alive, it will be immune to challenge. At the
same time, it can make old people vulnerable because once the property is
in the hands of the children, they can ill-treat their parents,” he says. If,
instead, it is willed to the child, the balance of power remains with the
parents.
If you no longer need a particular asset, gift it by all means, be it an
artefact, art work or jewellery. “However before you decide to do so,
understand the difference between a gift deed (a legal document used to
describe the transfer of gift without exchange of money), and a will. A will,
whether it is registered or not, is revocable during the lifetime of the
testator. On the other hand, a gift deed, once executed, is irrevocable,” says
Mahajan.
What this effectively means is that if, after drafting a will, you change
your mind about giving a particular asset to any of the beneficiaries, you
can easily draft another will incorporating the alteration. “However, law
does not allow the donor to make a new gift deed or change his decision
once it is executed,” adds Mahajan.
A stark example is that of Vijaypat Singhania, the founder of Raymond
company. He gifted all his shares, worth nearly ₹1,000 crore, to his son,
Gautam, and the 78-year-old is now suffering financially. “This is the
reason you should not relinquish your rights immediately. Give a small
part of your inheritance, if you want. If you give away everything, how will
you live?” asks Lakhotia.
As for the tax implication, any gift given to specified relatives is exempt
from tax in the hands of the receiver. However, in case of an immovable
property given as a gift to specified relatives, it will invite stamp duty. It is
best, therefore, to avoid giving gifts, especially property, during one’s
lifetime to children or any other beneficiaries and put it in the will instead.
8 Not planning for disability or terminal illness
NOT MAKING provisions for your own health in the will would certainly
qualify as a mistake. Were you to suffer from a terminal illness, disability,
or go in a coma, it will not only impact your finances but also your loved
ones. While a good solution is to have a basic health insurance and a
critical illness cover in place once you are in your 40s, it is equally
essential to make certain provisions in your will.
Mention clearly who will take charge of your estate and financial affairs,
as well as conduct the day-to-day transactions. If you have minor children,
state who will act as a guardian for them. More importantly, don’t fail to
appoint someone to take healthcare decisions for you in case you are not in
a position to do so yourself. You could even appoint a power of attorney or
set up a trust to handle your affairs.
Finally, if you are suffering from a terminal or debilitating illness, you
can pen down a living will (see What’s a living will?). As per a recent
Supreme Court ruling, you can list in advance, through a living will, the
particular line of treatment or withdrawal of treatment, if you so want. In
such a case, you appoint an executor to take health-related decisions on
your behalf, though the executor has the right to revoke the decision at any
time later on.
The process of executing the living will is elaborate and tedious, but it
does offer an individual the right to die with dignity. “Though the
procedure of making a living will is cumbersome, it enables a person to
choose the medical care he would want if he were suffering from a
terminal illness or were in coma,” says Mahajan.
FAQs
Common queries related to wills
Is it compulsory to register a will?
No, there is no legal requirement to register a will. It’s optional and
doesn’t even need to be written on a stamp paper or be notarised.
Can a registered will be challenged in a court of law?
Registering a will does not lend it any legal sanctity or remove suspicion
about its validity. It can, hence, be challenged in a court of law. The
grounds on which a will can be contested include fraud/forgery/coercion,
undue influence, lack of due execution, lack of testamentary intention, lack
of testamentary capacity, lack of knowledge and approval, and revocation.
If it’s not compulsory to register a will and it can still be
challenged, why should I register it?
You should do it as it has a greater authenticity than a nonregistered will.
If the testator gets it registered personally, it proves the genuineness of the
will and considerably reduces the grounds on which it can be contested in
court.
What if no executor has been appointed?
If the testator fails to list an executor in the will, an administrator is
appointed by a competent court to manage the testator’s estate after the
grant of letter of administration.
Can I list and pass on ancestral property in the will?
Ancestral property is one that is four generations old, which means it has
been passed on to heirs for three generations. An heir has no right over the
entire ancestral property and can will only his share of the property. It will
be illegal if he wills the property before acquiring his share in it.
If I have nominees for movable assets, do I still need a will?
Yes, a will overrides nomination because as per law, a nominee of an
immovable property is only a trustee or caretaker till the court decides
who is entitled to the property as per succession laws, and will be legally
bound to transfer the property to the legal heirs.
Should a will be hand-written or typed?
It can be either typed or handwritten, but it is advisable to have a hand-
written one because it is easier to prove its genuineness by confirming the
testator’s handwriting, and making it difficult to refute it.
What is the tax implication for a beneficiary if the asset is gifted
or willed?
As per Section 56 (2), if any asset is gifted to certain specified relatives
during the testator’s lifetime, there is no tax liability for the beneficiary.
Similarly, any asset that is willed or inherited by the beneficiary is free of
tax

What’s a living will?

Recognising the right to die with dignity as a fundamental right, the
Supreme Court, on 9 March 2018, allowed the institution of a living will.
This is essentially a document that allows a person to decide in advance
the course of medical treatment he would want if he were rendered
terminally or seriously ill and incapable of taking a decision at that point.