The importance of making a will
- During your lifetime, make a Will determining the manner in which you desire your assets to be distributed after your death.
- Preferably, do not discuss the contents of your proposed Will with family members or proposed beneficiaries. You are entitled in law to dispose of your assets in any manner of your choice and any discussion prior to making a Will inevitably leads to heart burns, jealously and resentment.
- A Will is required to be made voluntarily, without compulsion, force or threat.
- Making a Will does not imply or indicate impending death. This is an illogical presumption and has not been validated anywhere in the world.
- A Will is a document relating to your assets and, therefore, no other person has a right to know its contents. You are not obliged to disclose its contents to any person, including a member of the family.
- By law, a Will becomes operative only after your death. Hence, no right under the Will can be claimed by any person during your life time.
- A Will need not be registered nor does it require stamp paper. It can be written/typed on a plain paper. However, registering a Will before a Sub-Registrar will be prima facie proof of its execution and challenging its validity subsequently would be difficult.
- You can alter you Will as often as you wish. The normal rule is that the latest in terms of chronological date would be considered valid. Hence there is no impediment to your changing the contents of your Will without requiring permission from or consent of any person.
- Do not distribute or divest yourself of ownership of your immovable or moveable properties during your life time as you can achieve the same result through a Will. Given the current trends in family life, such divesting will render you vulnerable with no security. Most often (but sadly) control over property is the key to ensure acceptable norms of behavior by children in relation to elders. Consequently, upon divesting yourself of ownership of property, during your life time, you could be rendered dispensable and, therefore, subjected to unfair, objectionable and cruel treatment, with no viable remedy.
- Under a Will you are entitled to dispose of your self acquired property in any manner of your choice. Do not succumb to pressure, or emotional blackmail by family to dispose of such property in accordance with their desires.
- If you are the absolute owner of assets, recognize that your spouse must be assured of security after you life time. Hence, make adequate provisions in the Will for his/her comfort, safety and like (including access to monetary resources) so that he/she is not at the mercy of the other beneficiaries under the Will. Consult a competent professional to ensure that incorporation of such provisions in the Will as multiple options are available to achieve this object.
- Jewellery, gold and silver are valuable assets. It is not necessary or essential that they be distributed amongst family members during your life time. Make a list of items of jewellery, gold and silver articles and bequeath the items under your Will but retain custody, control and possession over them during your lifetime. They are encashable assets in times of necessity.
- Keep your Will in a place from where it can be retrieved immediately on death and preserved safely. Quite often, Wills are suppressed/ destroyed by interested parties particularly if contents are favorable to some and unfavorable to others.
- If your signature has undergone change over a period of time, write your Will in your handwriting so as to avoid future disputes about its authenticity and veracity. Disputing a handwritten Will in a court is substantially more difficult than a signature on a typed document.
- Do not make multiple copies of a Will, whether signed or unsigned. Ensure that only one original exists. Destroy all drafts made prior to execution of the final Will to avoid future disputes/complications.
- If you intend to effect alterations to an existing Will do not effect them on the existing Will/document. They may be construed as material alterations affecting its validity. Prepare a second Will or codicil and only thereafter destroy the earlier Will.
- Ensure that in your Will, the manner in which you want your assets to be distributed is precisely, clearly and unambiguously stated. DO NOT make vague, confused or complicated statements which could lead to more than one interpretation, as in every will, determination of the intention of the testator (Maker of the Will) is crucial.
- If you intend to donate your body for purposes of medical research, explicitly state so in the Will and complete the required formalities required under law during your lifetime. Consult a hospital or a competent legal practioner who will advise you on the procedures under prevalent law.
- If you intend to donate your eyes after death, complete all formalities required under law during your life time and specifically intimate your relatives/ friends of your intention so that no difference of opinion among family members arises upon your death.
- A Will needs to be signed in the presence of two witnesses who must attest the Will. These witnesses cannot be beneficiaries under the Will. The witnesses do not need to know the contents of the Will. They are witnesses only fact of your having signed the will in their presence. Preferably, the witness should be younger than you as they may need to testify in court your having signed the Will in their presence and their chances of outliving you are grater.
- A Will need not be in any particular format. It must, however, clearly indicate the intent of the maker clearly and without doubt.
- Ensure that while making a Will you appoint an executor. An executor is a person nominated by you to enforce the provisions of the will and ensure that your directions are given effect to. As a normal rule, a person substantially younger that you should be appointed. This could be any person, a friend, relative, banker, Advocate, Chartered Accountant or any person in whom you have trust. A beneficiary under your Will can also be an executor.
- It is essential that a Will is made when you are in a sound state of mind and body. Law requires you to fully understand the consequences of your action, without your judgment being affected by, mental or physical ailments. Therefore, do not wait till you are sick or in hospital/nursing home to make your Will. The validity of such Wills have very often been challenged on the ground that the maker was not in a fit state of mind or body and, therefore, could not have been certain of his/her intentions while disposing of his/her assets. Proving to the contrary is a tedious process, and would require the testimony of medical professionals, which may be not be available in all cases.
- If you intend to leave you Will in a safe deposit locker of a bank ensure that such locker is in joint names, with specific authority to the second holder to operate the locker after your death. Ensure that the bank records such instructions and obtain an confirmation therefore. In the absence of such arrangement it may become impossible for any person to have access to your will as operation of the locker would not be permitted by the bank.
- Ensure that under your Will, provisions for disposal of all assets, movable or immovable, are made. Such assets in respect of which no provision has been made would be considered intestate succession leading to possible legal proceedings and formalities. Items like cars, telephones, gas connections, crockery, household items, antiques, paintings, furniture should ideally be included in the Will. Do not presume the amicable disposition of all heirs when it is related to allotment of property.
- A bequest of self-acquired property need not be in favour of relative. The bequest need not even state the relationship of the beneficiary to you. The bequest can be to a person by name, without reference to any relationship. Such bequests would be valid in law. Ensure that description of the beneficiary is adequate to establish his/her identity, without it being subject to challenge.
About the author: Shiv Kumar is a Senior Advocate with 40 years of active practice at the Karnataka High Court. He has been actively involved with the Elders Help Line since its inception 10 years ago. He has established the Legal and Counseling Centre at the Helpline and a dispute resolution process in the form of mediation, which attempts conflict resolution through the alternative process of Mediation without recourse to courts. He is a trained and certified Mediator and a Trainer of trainers at the Bangalore Mediation Centre.
He has been the author of a draft legislation exclusively for Elders that was presented for public discussion. The existing Law has drawn from such legislation. He currently organizes several programmes on empowering Senior citizens and conducts workshops on educating elders on their rights under Law. He is actively involved in the Disability Sector and does work in the areas of visual impairment and mental health.