As you wait out the lockdown at home, make time to write a Will

Mint | 31 Mar 2020 |Ashwini Kumar Sharma

  • In the absence of a Will, assets such as property can become a point of conflict among your loved ones
  • Remember that you can revise the Will as many times as you want. Only the last one will be counted as valid

Difficult conditions, like the one we are going through now amid the raging covid-19 pandemic, are a good reminder to revisit important tasks that you may otherwise ignore. Writing a Will is one such task that should be on your to-do list. Like it or not, life is uncertain and the sooner you have a succession plan in place, the better.

In the absence of a Will, assets you have accumulated over a lifetime can become a point of conflict among your loved ones. “Any person who has assets in any form should write a Will, so that his assets may be inherited by the persons whom he wants his assets to go. However, those who are middle aged and older should certainly write a Will,” said Rajesh Narain Gupta, managing partner, SNG and Partners, a law firm.

So, now that social distancing has left more time on your hands, take some out to write your Will. Here’s how to go about it.

Writing a will

There is no fixed format, procedure or way of writing a Will. “The only requirement is that the testator (one who writes the Will) signs it in the presence of two witnesses and the witnesses sign in the presence of the testator,” said Gupta.

However, before writing a Will, one should know the succession or personal laws applicable to the testator. A Will is particularly useful if you want your assets to devolve according to your wishes, and not as per the succession laws of a religion-based personal law code. But in some cases, you need to follow the personal law applicable to you. For instance, if you are a Hindu, you can only bequeath assets according to your wish if you acquired them yourself. For any ancestral property or assets you possess, the succession rules will apply.

It is not necessary to seek the help of a lawyer, but depending on your assets and liabilities you may need assistance. “It is good to consult a professional so that there is no legal lacuna. However, it is not mandatory,” said Gupta.

Also, there is no fixed amount that a lawyer will charge you. It varies depending on various factors, including the complexity of the Will. “It may range from ₹3,000, which is offered by few online portals to a few lakhs,” added Gupta.

Authenticating a will

It is not mandatory to register your Will but the process may help establish the authenticity of the Will. “Registration of a Will is important as it establishes the bona fides and puts to rest any controversy regarding fraud, undue influence, breach of trust, among others, as the sub-registrar of assurances is expected to follow a due process,” said Gupta.

In many states, you may also need to furnish a doctor’s certificate stating that the testator is of sound mind.

There is another way to establish the authenticity of a Will. “Record a video of the execution. This is admissible as evidence,” said Gupta.

Legal battles

In case someone challenges a Will, it could be a long-drawn legal battle for settlement. To avoid such a situation, you can put an “in terrorem” clause, which basically warns the legatees that if they challenge the Will, they could lose what has been bequeathed to them.

But doing things right might be enough. “A properly written and registered Will, complete with video evidence of its execution, will act as a shield against any frivolous disputes that may arise,” said Gupta.

Once the assets are distributed as per the Will, the beneficiary may need to obtain a probate, especially if the Will includes bequeathing of immovable assets. It can be obtained from the court by paying the applicable fees. Once you acquired, challenging the Will would become difficult.

Given the lockdown across the country, there is a chance that your whole family will be home. Make the most of the opportunity and discuss your Will. Remember that you can revise your Will as many times as you want. Only the last one will count.