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All you wanted to know about Wills

Keerthi Sanagasetti | Updated on May 29, 2021

After one’s time, family members or other beneficiaries should be spared the trauma of sorting out financial matters from scratch. Here are ways to de-stress the inheritance process

One big lesson from Covid-19? Be prepared for uncertainties. True to that spirit, many of us have ramped up our insurance and investments for emergencies. But not everyone is ready for the ultimate reality — the big sleep!

While we cannot save our loved ones from the pain of bereavement, we sure can ease their burden in handling financial matters — by bequeathing our assets through a Will.

Contrary to common belief, a Will can be devoid of hard-to-comprehend legal language and can be handwritten too. A Will need not be registered, either. But while keeping it simple, you still need to pay attention to certain factors while writing your Will. Here is a lowdown.

Write, rewrite, update

The Will should contain all necessary information about the testator (person writing the Will), the assets you wish to bequeath, and the manner in which you wish to distribute them to your survivors.

In writing all this, while you may resort to simple language and keep legal jargon at bay, don’t forget to mention important details. Stating clearly the assets you hold, and the location of all the necessary documentation will be of much help. For instance, while bequeathing your home, you may also include details of the bank locker where the title deeds are stored, along with identifiable and distinguishable details of the property.

Apart from specific details of the assets, the testator should also clearly mention the details of the beneficiaries to whom he wishes to pass on the assets. This will aid the process of transmission. Besides, to avoid trouble over name mismatches, you can also mention at least one identity proof such as passport number or PAN or Aadhaar to help pinpoint each beneficiary in your Will.

What, if at a later date, you changed your mind? Instead of dividing a certain asset equally among all legal heirs, you now wish to bestow it on one particular person – or vice versa. In circumstances like this, when the iterations are aplenty, a revised Will is the best way out. However, when the changes are limited, one may use a codicil to indicate the necessary amendments. But the codicil should clearly mention that it is part of a specific Will and must be read in conjunction. It may be wise to mention the sentences (from the original Will) that you would now wish to revoke and in whose place the new sentences from the codicil should be considered.

Another important thing to keep in mind is to update your Will from time to time, to include all assets acquired by you subsequently. While making an updated version, specify clearly that the earlier version shall become void and this version shall supersede all earlier versions. To avoid ambiguity, it will help to even tear up or destroy earlier versions.

Besides, one could make use of a residual clause to take care of future inclusions. For instance, you can include a residuary clause in the Will that states the name of the beneficiary to whom the residue of the assets of the testator — which have not been mentioned in the Will — should devolve upon. This general clause can also come in handy to cover assets that the testator could have erroneously missed mentioning in the Will.

Use expert guidance

While the Will-making process is in itself simple, you may sometimes need the helping hand of specialists. Legal assistance can be useful when you intend to bequeath ancestral property. The laws of succession in India vary according to one’s religion and gender, and cannot be always superseded by a mere mention in a Will. For instance, for those governed by the Hindu Succession Act, 1956, there is no restriction on whom the assets can be bequeathed to in a valid will, but the same may not be the case for those governed by other religious succession laws. An expert in estate planning can hence help you better understand the nuances. Besides the expertise of a lawyer, you may need the services of others such as Custodians or Trustees.

If you are writing a Will when you have minor children, it will be wise to mention in your Will who you wish to appoint as their legal guardian, until such time the children attain majority. This holds good for children as well as other survivors with disabilities or those with special needs. Likewise, trustees are appointed to take care of the assets until such time they can be passed on to the beneficiary.

If you wish your family’s financial goals to be met after you are no more, you can take recourse to creating and appointing a family trust that shall not only safeguard your assets but also manage them and re-invest returns arising from them, for the benefit of your survivors.

Also, if your Will encompasses several assets and beneficiaries, it may be wise to appoint an executor for your Will as well. If the guardians and executors are not appointed by you (mentioned in the Will), the courts may do so on your behalf, if need be. Not only do court-appointed personnel entail huge fees but there is also a risk of mishandling, which is why it would be ideal for you to appoint them upfront and clearly mention in the Will. The guardians, trustees and executors can be members of the family and can also be paid a fee (as decided by you in the Will) for their services.

Make it foolproof

The prerequisites of a Will are that it should be specific, clear, and be either handwritten or typed — oral Wills are not accepted in India (unless you are a soldier at war). That apart, and most importantly, the Will should be signed by the testator in the presence of two witnesses — who are also required to sign the Will. Besides forgery, the two most important grounds on which Wills are often contested in courts are recency and duress. For instance, it may be claimed that the Will under question is an outdated one and the updated version has gone missing; or that the testator was either manipulated or coerced into writing this version or was not in a stable state of mind while writing this Will.

Simple ways to avoid such circumstances include mentioning the date of writing the Will and the fact that the Will was written while in sound mind and body and has been written voluntarily, under no influence of any sort — in the Will itself. A much better way is to get the Will registered with the Sub-Registrar of Assurance’s Office by paying a nominal fee (for scanning the document). Registration helps as the testator is required to physically visit the Office of the Registrar and sign in his register along with two witnesses (who may or may not be the same as the witnesses of the Will).

The appointment of a professional for estate planning — an external executor or trust — can also remove the ambiguity relating to recency. Video graphing the process of signing the Will or saving the Will in a bank locker (which proves that the testator consciously accessed the locker to safeguard it there) can also serve as proof in a court of law, if a Will is contested. These measures help in assessing the recency of the Will and to establish that the testator was in a sound state of mind while writing the Will. Besides, these measures can also speed up the process of transmission and/or of obtaining a probate for a Will.

Did you know?

A Will can be in simple language and on plain paper

Alterations can be made to a Will through a codicil or by creating a fresh Will

Residual clauses help cover all assets acquired henceforth and those missed erroneously

Legal assistance might be required in certain cases

Registration, though not mandatory, can help when a Will is being contested in court

Explore alternatives

When there is a Will, there sure is a way to safely pass on your wealth to your heirs. But there are also alternatives to a Will, which may be more useful on a case-to-case basis. For instance, if you were to bequeath your immovable property, a conditional settlement deed works better than a Will. The condition in this case shall be your demise, after which the beneficiary mentioned by you shall be the absolute owner of the property. Since deeds make transmissions easier, they come with a price — one needs to register the conditional settlement deed with the Registrar along with the payment of stamp duty, which can range from 1 to 7 per cent of the property value. Registration of settlement deeds is a mandate, unlike that of a Will.

That said, experts in estate planning suggest no such easy alternatives in the case of financial assets. While the nominations you make for your financial assets are useful, they don’t exactly act as an alternative for a Will. The liability of the financial institutions ends with the handover of the asset to the nominee. When nominees are your legal heirs themselves, there may be less scope for problems in many cases. However, remember that nominees are mere custodians of the assets. In case you expire without a Will, the matter unfortunately goes to court and the court decides to equally distribute your assets to all your legal heirs; nominations could be superseded.

Other options

Conditional settlement deed can be used to bequeath immovable properties after your demise

Nominations made while acquiring financial assets may not hold good if you don’t write a Will and your legal heirs opt for court settlement

The world of digital Wills

In today’s world of social distancing, if anything doesn’t have an online alternative, it probably gets on our nerves. For those who want to write a Will, websites such as willjini.com, easyinherit.in and nexgentransfer.com allow you to draft Wills completely online. Besides assisting in drafting basic Wills, many sites offer professional legal advice digitally (through videoconferencing or over phone). Certain platforms such as easyinherit.in also let you maintain an e-locker (EasyPortfolio) using the DigiLocker platform. One can use these lockers to safe-keep details of all financial assets held — handy for your survivors.

The fee for services varies across websites. While a few offer free legal consultations, others offer free drafts of basic Wills (upon requesting certain details from you). In most cases, websites charge a fixed fee for each service — that is, the fee is not charged as a percentage of the value of your property.

Paid services of assistance in drafting of Wills online can range from ₹1,500 to ₹65,000, depending on the complexities in the title of the assets or the laws governing your succession. Charges for other add-on services also vary. easyinherit.in charges ₹2,500 per legal consultation and ₹999 (per annum) for the EasyPortfolio service. The latter is free now, in view of pandemic situation; willijini.com charges ₹1,000 per legal consultation, other services on time and effort basis.

Brokerage firms such as HDFC Securities (tie up with willijini.com) and ICICI Direct offer similar services to clients. Unlike most websites that help draft wills almost instantaneously, the services of ICICI Direct have a turnaround time of upto 15 working days from the date of receipt of complete information (replies to the questionnaire sent via email). The fee for the will drafting service is ₹11,800 (to be paid online, upfront).

Do note that the digital part stops with the drafting of the Will and taking the services of a consultant. For a Will to be valid, it has to be printed and duly signed by the testator along with two witnesses. Sadly, digital signatures are not accepted for succession or estate planning in India as yet.

What’s on offer

Some websites provide free legal consultations while others help draft free basic Wills

While it can be stored online, to be valid, it must be printed and signed by the testator along with two other witnesses

Published on May 29, 2021

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