What I Learnt about Writing a Will
As Vipin Khandelwal says, everyone should have a will, regardless of their age. In the absence of a will, assets will be distributed in a certain way. The deceased person’s spouse and children are class 1 legal heirs, so their assets will be divided equally between them. If that’s not what you want, say you feel your wife should get more because she has less earning power, then you need to write a will. In other words, a will ensures that your assets are distributed in the way that you want, not a random way.
In the absence of a will, someone who feels they deserve some of the assets can approach a court and claim. Imagine a lady who has been estranged from her children and taken care her of by her nephew for the last 20 years of her life. The nephew can approach the court and make a claim. Another scenario that happens occasionally is that a man dies, and a woman who has no connection to him appears out of the woodwork and claims she’s his second wife, as a cynical ploy to get some of the money. In all these cases, a magistrate will have to decide what’s reasonable under the circumstances. A will prevents this stressful and time-consuming litigation. In addition to the legal angle, at a human level, relatives are likely to respect their loved one’s wishes rather than fighting for the assets.
Who can write a will
To write a will, a person must be of a sound mind. If they’re above 70, it’s better to have a doctor certify that he’s of sound mind, to avoid someone claiming later that he’s not, say that he suffering from dementia, and so the will is invalid.
A sound body isn’t required. If they can no longer see, the will be read out to them by the sub-registrar, who will then ask if he agrees to it freely and not under duress. If their handwriting is shaky, their thumb impression will be taken in addition to their signature. So failing physical health is not a problem, as long as mental health is fine.
How to write a will
A will doesn’t have to be in a particular format, or on stamp paper, for it to be valid. It’s literally your will. But you should take care of the following:
Date the will.
In your will, identify beneficiaries and one executor. The executor’s job is to distribute the assets to the beneficiaries — he doesn’t get anything for himself (unless he’s also a beneficiary). Don’t confuse these two concepts.
A will should clearly identify all three types of parties involved — the person writing the will, the beneficiaries, and the executor. Give as much information as possible, such as Aadhaar number, mobile number, son of or wife of whom1, where they live, what profession they’re engaged in, etc. This prevents a scenario where you willed it to Suresh but another person named Suresh pops up and says he’s the one referred to in the will. This is where giving Suresh’s Aadhaar number, or saying he’s the son of so and so, or that that he lives in Chennai, or works as a doctor helps defeat the fraudulent claim. And a scenario is where if your name is Ramesh and you write a will and die, but someone claims that the will was written not by you but by another person named Ramesh. Be unambiguous about the identities of all parties involved.
Give as many details about the assets2 as possible. For example, “my apartment” is better than “my property”, because if you own an apartment and a plot of land, and you will your “property” to Ramesh, does that mean he should get the apartment, the land, or both? By contrast, if you will your “apartment” to Ramesh, it’s unambiguous. That’s why “my apartment” is better than “my property”. Even better is “my apartment in Bangalore”. Still better is “my apartment at C-304, Prestige Whatever, 1st B cross, Kaggadasapura Main Road, C.V.Raman Nagar, Bangalore”. For the same reason, "My Honda Elevate" is better than "my car" — what if you have an Elevate and a Creta, and you will “your car” to Navya? Should she get the Elevate, the Creta or both? Instead say, “My Honda Elevate”.
What if you will 10 lakh each to A and B, but you have only 15 lakh at the time of your death? It’s better to disambiguate such as “First, A gets 10 lakh. Then B gets 10 lakh, but if 10 lakh isn’t remaining, B gets whatever is remaining.” or “A and B each gets 10 lakh, or proportionally less if 20 lakh isn’t available.”
What if your property is in a different state from where you reside? It’s not a problem3.
If you want to change one small part of your will, write a new will in its entirety, and in the new will, declare that any previous wills you’ve written are invalid4.
You need witnesses5 to sign on the will. Some of us treat this as a bureaucratic annoyance and get some random people to sign, like our maid or whoever happens to be at the print shop. Don’t do that. In the event of a dispute, the witnesses are called to verify that the person did sign the will in front of them, after which he (the witness) signed6. Imagine a will written and signed by Ramesh. Ramesh passes away. Someone claims that Suresh forged Ramesh’s signature. Or another person with the same name wrote the will. So get witnesses who are reliable and likely to be in touch with for decades, like relatives or close friends.
It’s better to get a will registered. This means that the government verifies that you really wrote the will, that you’re in a sound mind, the contents of the will, and the date. This prevents a whole bunch of claims:
“The will says it’s written by Ramesh but Suresh actually signed.”
“The will was written by another person who happens to be named Ramesh, too.”
“Ramesh was suffering from dementia and not of a sound mind when he wrote the will.”
“The will was modified by a third party after it was signed.”
“The will was written in 2010 but wrongly dated 2020.”
If it’s unregistered, then it becomes a question of who can tell the judge a more convincing story. So it’s better to register it.
Thanks to Parmeet Singh Nagi for this information. Parmeet is a friend of a friend and a lawyer with whom I’ve had the pleasure of working with in the past.
People sometimes think that an unmarried woman should be referred to as Daughter Of, while a married woman should be referred to as Wife Of. In reality, a married woman can still be referred to as Daughter Of. Similarly, a man can be referred to as Son Of <mother’s name> rather than Son Of <father’s name>, as long it’s clear who it is.
Any assets that you’ve sold or gifted before your death are automatically excluded from the will.
A sale deed for property needs to be executed in the state the property is in, but a will deed is the only deed that can be executed in a different state from where the property is.
You can have an addendum to the first will but I have seen this result in confusion and disagreements between family members. This is the last thing you want after you’re done. Make it unambiguous for your family by having just one document to refer to, not multiple. Don’t be lazy.
No, the beneficiaries can’t be witnesses, since that’s an obvious conflict of interest.
The witnesses won’t be asked about the content of the will, nor the date on which it was signed. They just have to say, “I saw X sign the will, and I then signed.”