Going about it the write way

Apr 10, 2012, 07:31 IST | Hemal Ashar

An expert decodes the perplexing world of making a Will

To write or not to write, that is the question. And how does one write it? Writing a will is essential, most people will advise you but the layperson is often at a loss as to how one goes about penning this document. Expert and Chartered Accountant Vimal Punmiya answers basic questions on making a will to preserving it, de-mystifying a daunting prospect for many.

Illustration/Amit Bandre

From an interview:
Q: What is a Will and what are the benefits of making one?
Ans: A WILL is a written document in which you provide for:-
a. the administration of your estate/assets when you die; and
B. the distribution of your possessions in specific proportions to specific people whom you wish to have a share of your estate/assets;
c. appoint a person or persons of your choice to administer your estate; and
D. appoint a guardian or guardians for your infant children (if any).
In other words it is a document where you direct, who is to receive your property upon your death. If you have any real property (land) or personal property (cars, jewellery, money) that you want to give to a specific person, then you must have a Will.

Q: Should everybody working or non-working, man or woman make a Will? and what if you pass away without making a will?
Ans: Where there’s a will, there’s a way… where there is no Will, there will probably be family bitterness/disputes… If people die without a Will, then the law will decide to who the property of the deceased person goes to. Every person whether working or non-working, man or woman should make a will.

Q: When should people make a Will? At what age, on an average?
Ans: Every adult, no matter what age, should have a Will. Preferably, a person above 50 should have a Will. And while making a Will, a person must be of sound mind.

Q: What is the process of making a Will? What language does one write in? Do you need witnesses while making a Will?
Ans: No prescribed form for a Will; it only needs to be signed and
>> Can be in any language; no technical words need to be used
>>  Two witnesses must attest a Will; one preferably a doctor
>>  They should sign in the presence of each other and the person making the Will
>>  In India, the registration of Wills is not compulsory
>>  The Will should provide for the appointment of executors, though not mandatory
>>  No stamp duty is required to be paid for executing a Will

Q:Where should one keep the will after writing it? Should somebody in the family/or friends know where this is kept?
Ans: Keep the original in a safe place, where it may be found easily after your death. Leave a copy with the attorney who wrote it for you or with a copy with your family friend, CA or Advocate.

Q:Can a Will be verbal or does it have to be written?
Ans: A Will has to be written but a verbal Will is permitted in the case of Defence Personnel. However, a verbal Will is not valid if you have a valid, written Will. If you have no written Will, a verbal Will can be valid with regard to any property you own, except land. Property that can be transferred under a verbal Will includes stocks, bonds, cars, coin collections, jewellery and appliances. A verbal Will is valid only if you know you are dying and say what you want in your Will to two competent, disinterested witnesses. The witnesses must put the Will in writing and sign the transcription within 10 days.

Q: We see lots of problems in families when the head of a family passes away without leaving a Will…
Ans: If you die without leaving a valid legal Will, you are said to have died ‘Intestate’. The law dictates who will inherit your estate and in what proportion. The law also decides who will have responsibility for administering your estate (your personal representatives). Such a decision may create a dispute and some hurdles amongst family members.

Q: Should you keep the contents of a will secret? Or, can they be shared with people?
Ans:It is advisable to keep the contents of a will secret. However, it is not necessary to keep it secret, it depends upon the person and varies from case to case.

Q:Can a husband and wife make a joint Will?
Ans:No it is not possible to have a joint Will, there must be individual Wills. However ‘Mirror Wills’ are quite common. A ‘Mirror Will’ is when a spouse or partner make almost identical Wills, or even absolutely identical Wills, leaving for example, everything to each other respectively should one partner perish and if both perish together, then directly to the children. If they have no children, then to a named beneficiary. This is where major differences often occur say, for example, the husband could leaves his possessions and estate to his siblings and the wife leaves her possessions and estate to her siblings!

Q. Supposing a person makes a Will leaving his/her assets and money not to the family but to an outsider or perhaps to a charity - is this Will to be honoured?
Ans: Yes, basically a Will is a document that states or directs the Will of the person, as to whom he/she wants his/her property to be handled after their death. So, the person in whose name the assets are transferred can be any person, an outsider, or even a charitable trust.

Q: Wills are often contested by people. Can you enumerate three of the most common grounds on which they are contested?
Ans: Yes, Wills are often contested by people. Some common grounds on which Wills are contested are:
a) That the person was not of sound mind.
b) The Testator lacked testamentary capacity to sign a will.
c) The person was unduly influenced into signing a Will/ a Will is made under pressure.
d) The Will was procured fraudulently.
e) The Will is not signed before two witnesses.
f) The name of family members is not mentioned in the Will.

Q: Wills often result in bitterness in families and fragmentation — maybe somebody thinks they have not quite got what they wanted or lesser than the other person…
Ans: Yes, it might happen in various situations. To prevent such occurrences, it is advisable to consult a lawyer, to help you to draft the Will in a certain manner and give proper statements as to why only certain assets are given to a particular member, instead of others.

Q: Have there been cases in which a will has been deliberately tampered with? Or, when maybe mentally unsound people have been fooled into making Wills?
Ans: There are very few cases where the Will has been deliberately tampered with or when the mentally unsound people have been fooled into making Wills.

Q:Can a person change a Will he has already made?
Ans:You can change your Will any time you want to. However, make sure that when you make a new Will, you mention that this Will is the latest and supersedes all earlier Wills. If you don’t, it can complicate the situation, cause major confusion, make such matters go to the court of law and take several years before arriving at any final verdict. You can also make additions to your Will by signing a ‘codicil’, with all the formalities of a Will. The codicil must be in writing, dated and signed by you and two witnesses. You cannot change a properly executed Will by writing revisions into the Will, even if you initial and date the changes. Such changes are valid only if they occur before the Will is signed and witnessed. If major changes are needed, consider making a new Will.

Q: What should be a person’s state of mind when they make a Will?
Ans: A person should make a Will in a sound state of mind and should have the Will registered with the Registrar of Sub Assurances in the presence of two witnesses. The Registrar will also ask for Identity proof, Doctors Certificate, Residential proof of the person who makes the Will, Identity proof of witnesses — these expenses are very nominal.

Q:Should people take the help of a lawyer when making a Will or can they make it on their own?
Ans: The procedure of making a Will is very simple, if assets are few than the help of a lawyer is unnecessary, but in case the assets are many and the family is big, there is a possibility of disputes then it is advisable to take the help of the lawyer. As ‘Do-it-yourself’ Wills often do not contain all the necessary components as required by law and many times ruled as invalid by courts (for example no signatures from witness or no witness at all). Many a time, it can happen that while creating the Will, you use such ambiguous language that it results in lengthy legal battles — “My House should go to Sunita.” Now, if both mother and wife are called Sunita, which Sunita ought to get it? Anyone who might benefit from the ambiguity of the will can jump in to claim a share! And if the courts decide in his/her favour, you won’t like that situation (not that, you’ll be around!)

Q: Does marriage / entering into a civil partnership affect the Will?
Ans: Yes, if you marry or enter into a civil partnership, your Will is revoked. This is because there is an assumption that you would wish to provide for your new spouse or civil partner. There is an exception to this rule if you have made your Will ‘in anticipation of’ marriage / entering a civil partnership. If you are in any doubt about this, consult your solicitor for advice.

Q: Does divorce / dissolution of civil partnership affect Wills?
Ans: Yes, if you divorce or your civil partnership is dissolved, any Will you have made is revoked but only to the extent that your ex-spouse or ex-partner is referred to. For example, any appointment of your ex-spouse or ex-partner as an executor or beneficiary is revoked. However, your Will may still be valid and, again, you should consult your solicitor for advice.

Disclaimer: This article is intended to answer basic, most Frequently Asked Questions (FAQ) about Wills. It cannot be used as a substitute for legal opinion.

See tomorrow: Different kinds of Wills and about nominees and Wills.

What is a will?
A Will is a legal declaration made by a person during his lifetime with regard to disposal of his properties after his death. The Will does not take effect from the date of its execution. It speaks from the death of the testator. During the testator’s lifetime, the Will is an ambulatory document, revocable at any time and having no legal effect. 

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