My uncle recently underwent a heart surgery and as there were some complications, the doctor suggested going for another surgery. He decided to call his lawyer at the time and changed his Will and the same has now been registered. He wants to know if the Will can be challenged at a later date to claim that he wasn’t in the right state of mind?
Proving that you were in the right state of mind when the Will was written is called “establishing testamentary capacity" and is crucial in insulating your Will from challenges. In simple terms, the law requires that the person making the Will be capable (at the time of making it) of enough mental function to understand their decision and the consequences. Depending on how close in time your uncle’s creation of the new Will and his surgery were, his testamentary capacity may be challenged. If he wishes to prevent any challenges to his estate, it is recommended that he withdraw his registered Will. Instead he should execute a new Will (which can be the same in terms of content), which is witnessed by his treating doctor. His doctor should also issue a medical certificate, dated the same day as the Will, certifying his mental state. The new Will can be registered again with these precautions. A more robust approach would be that your uncle undergoes a psychological assessment, and on the basis of the certificate obtained on passing this test, executes a fresh Will with the certificate attached. While this is elaborate, this approach can help negate the ground of any legal challenge.
I recently came across some online portals to make a Will. How safe are these platforms? What are some of the things I should keep in mind before writing a Will on my own?
Online Will-making platforms have sprung up recently, where you can make a basic Will quite cheaply. While we cannot comment on the security of your information on these platforms, in our experience, these online Wills are sufficient for simple and basic estates. But they are not equipped to handle any estate which has any degree of complexity, such as a brewing family dispute, or ancestral property, or NRI family members. In such cases, specialist legal advice is recommended.
The consequence of something going wrong in your Will is that your estate may pass without a proper Will, and devolve as per law—this is something you should try and avoid. Pay a little more and get a good lawyer.
If you are writing a Will on your own, ensure you understand the scope of your estate (for example, joint assets or ancestral property) and are clear about whom you want to leave it to. If it is just your immediate family, it is more straightforward, but if you want to include others (for example, siblings, parents or charity), then clearly define their bequests. Don’t forget to nominate at least one executor who will give effect to your Will after you die.
Rishabh Shroff is partner, Cyril Amarchand Mangaldas. Queries and views at firstname.lastname@example.org