Who writes a Will: why, when, and how
The importance of a Will is underrated in our country. This is counter-intuitive because most Indians like to invest and have capital assets such as house, land, and jewellery, which are prone to conflict between heirs in absence of a Will. It is a misconception that only multimillionaires or only those with a long list of heirs should write a Will. Even those with meagre assets and few heirs should make a Will, so that their assets can be transferred without any problems. Let’s read about some of the things to keep in mind while writing a Will.
If a person dies without a Will (also know as dying intestate), it can create lot of problems such as, “no centralized record of the assets; trouble in determining legal heirs and distributing the assets; transferring assets to an heir; no trustee or executor to oversee administration; and likely lengthy litigation, costs,” said Sandeep Dave, partner, Cyril Amarchand Mangaldas, a law firm.
Also, to claim the stakes in the estate, heirs would have to obtain a plethora of documents to prove the claim. “Legal heirs of the deceased have to obtain letters of administration from the court, where the deceased has left behind movable and immovable properties, or obtain a succession certificate from the Court in case the deceased has left behind movable properties only,” said Amit Kolekar, Associate Partner, Rajani Associates, a law firm.
In the absence of a Will, assets of the deceased have to be divided between the heirs as per the personal law applicable to the deceased person. In many cases, a consensus between heirs is required to distribute the estate.
Legal interference to solve the disputes come at a cost. “In Maharashtra, the court fees for Testamentary Petition and Suit for Administration are capped at a maximum of Rs75,000 and Rs3 lakh, respectively,” said Dave. The fees varies from state to state. Besides that, “Professional fees of the lawyer will vary depending on experience and cases’s complexity,” said Kolekar.
In order to make an ironclad Will, so that its essence is not diluted, you can add various clauses. “In our experience, Wills are often vague and unclear. To avoid any ambiguity, these clauses are required,” said Dave. In general, one should insert clause to clearly state that “it is the last Will and testament of the testator and that all previous Wills stand revoked. It should clearly set out details of all the movable and immovable assets and give details such as their description, location, and monetary value (if possible). The Will should also provide that the Testator is not making the Will under coercion or undue influence,” added Dave.
A Will is particularly useful if you want your assets to be devolved according to your wishes and not as per the succession laws of a religion-based personal law code.
Say, you want to bequeath some assets to your spouse, some to your children in different proportions, some to provide for your parents and leave something for your friends and associates as well. Such requirements can only be met if clear instructions are left in a Will. To ensure this you can add an “in terrorem” clause. “In Terrorem is a Latin term that means ‘fear’. A terrorem clause is often incorporated where a Will contest is anticipated,” said Kolekar.
By incorporating such a clause, you can warn the legatees that if they challenge the Will, they could lose what has been bequeathed to them. Kolekar explained this with an example: Let’s say a testator has two children, and six assets of equal value. She then goes ahead and bequeaths five assets to the elder one and only one to the younger one. The division is obviously not equal. If our testator wants to dissuade her younger child from contesting the Will, then she can state in her Will that if the younger one challenges the Will, she will not be entitled to any of the assets.
Registering a Will
“It is not compulsorily to register a Will,” said Kolekar. Dave agrees: “Neither the Indian Succession Act, 1925 nor the Indian Registration Act, 1908 provide for compulsory registration of a Will.”
However, it is beneficial to both the executor and beneficiaries of the Will as it adds authenticity. “It is advisable to register a Will as it provides strong legal evidence of its proper execution and makes it less prone to frivolous challenges,” said Dave. “Registration of the Will provides evidence that the testator and the witnesses had appeared before the concerned office of sub-registrar of assurances and that the latter had attested it after ascertaining their identities,” added Kolekar.
A copy of this Will is maintained at the registrar’s office and thus it “cannot be tampered with, destroyed, or stolen,” said Kolekar. However, just because a Will is not registered, it does not mean that it is not legitimate, he added. The cost of registering a Will differs from state to state, but it is mostly a nominal amount. For instance, in Delhi no stamp duty is required and only a nominal fee of Rs21 has to be paid. In Karnataka too there is no stamp duty, and Rs200 has to be paid as registration fee.
Irrespective of the amount of your wealth, you should write a Will to facilitate smooth transmission of assets to your loved. Given that the cost of writing (you can write it yourself or get it done professionally) and registering a Will is minuscule, compared to the cost of litigation, it worthwhile to have it ready as soon as possible. And no Will is final. You can even revise or change it as many times as you want. Each new version can be registered by paying the required registration fee. And only the last one will count.