Devil lies in the details when it comes to wills says Aditya Parikh.
The deceased may have left for peaceful heavens, but heirs turn the division of assets into one hellish fight. And a properly made will, may be the only thing that could mitigate such an acrimonious dispute. Therefore, the need to make a valid will can’t be emphasised enough. Often, the layperson is ignorant of the ingredients of a valid will and despite best intentions, the effort to put a proper will in place gets botched. So, in legal terms, the testator, or in lay terms, the maker of the will, should make a will that stands the test of law, in the event the heirs decide to knock on the doors of a court.
Sunil Patel, Sunil & Co, Advocate and Solicitors, giving points to remember while making a will, opines that a valid will could be made on a plain paper and doesn’t require stamp paper or registration. Regarding witnesses, it should contain two witnesses and the beneficiary of the will should never be a witness. Preferably, the witnesses should be
practicing professionals e.g chartered accountant, doctor etc. This would lend additional credence to the will.
He further recommends that the will, besides mentioning the name, age, and residence of the testator, should clearly mention the names of all legal heirs whether they are beneficiaries or not. Which means it is important to name and mention all of one’s heirs whether one chooses to bequeath anything to them or not.
Coming to the language of the will, he added that ambiguity could breed dispute and therefore, language should be simple and unambiguous. This will lead to less confusion and disputes in the future. Unambiguous especially applies to describing the assets which are intended to be bequeathed, and hence, all assets should have a detailed description so they can be identified clearly.
Explaining changing or cancelling the will, Sunil Patel said that if the testator subsequently wants to change or make some correction or addition to the will, the testator is free to revoke the earlier will. If the changes are minor, testator can make small document called a codicil and the will shall be read along with the codicil. Under normal circumstances, a lack of a will should be avoided as it can lead to unnecessary disputes, therefore, Sunil Patel strongly recommends, “every person after the age of 50 should make a will, and not ignore or delay the making of a will”
The basic legal concepts that surround a will can be confusing to the layperson. Manthan Unadkat, Advocate & Solicitor, Unadkat & Co, explaining the basic legal concepts, said that maker of a will or the testator must be legally competent while making a will which means the testator must be of sound mind, not a minor, and the execution of the will must be free from fraud and coercion.
The issue of witnesses is of considerable importance. Adding on the subject of witnesses, Manthan Unadkat says that the witnesses and testator should sign in the presence of each other. He also refers to a 2013 Supreme Court judgement in Narinder Singh Rao vs Avm Mahinder Singh Rao & Others wherein it is mentioned, “Factually also, the said writing was not a Will because it was not attested by two attesting witnesses as is required to be done for execution of a valid Will.”
Executors are many a time appointed for wills. Expounding on the subject, Manthan Unadkat said that a testator may appoint an executor to carry out his directions in the will, and to distribute the estate for the benefit of the beneficiaries. If an executor is not appointed, the court will appoint a person to administer the estate of the testator. However, an executor does not derive any benefits under the will, unless specifically provided for.
There are times when heirs dispute the genuineness of the will. Therefore, Manthan Unadkat recommends, “though not compulsory, it is always advisable to register the will, as it evidences genuineness and once registered, it cannot be tampered with or mutilated. A will should be registered in the office of the sub-registrar of the district in which the testator resides.”
Disputes over estates are as old as the hills. Ego, greed, and other such emotions run high, creating a long drawn legal battle. Therefore, after the head of the family has passed, a piece of paper called a will becomes the glue that binds a family together.a
