Important Things to Keep in Mind While Writing a Will

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All wills should include

  • Your essential personal details: including your name,  age, address and identification numbers (such as PAN card, Passport or Aadhar) of the person making the will. 
  • Beneficiary details: Full name of your beneficaries, their relationship to you and their identification numbers (such as PAN card, passport or Aadhar)
  • Executor details: An executor is a person who will execute and carry out the wishes stated in your Will. The name and identification details of your executor should be included in the will. 
  • Details of your assets & liabilities: that you would seek to pass on to your beneficiaries. This should ideally be as specific as possible (account numbers, property address etc.)
  • How your assets are to be divided: The share that each beneficiary has on the property or the specifics of who shall get what is to be listed in full detail. 
  • Two witnesses: who witness your signing of the will and sign your will as witnesses. The identification details of the witnesses should be included. 
  • 3 critical declarations: that you are (a) revoking all previous wills (b) you are of sound mind (c) you are not making the will under any undue pressure
  • Dated & signed: All wills should be explicitly dated, mentioned clearly the date & place where the will has been signed. 

It is recommended to be as specific as possible, when listing out the details of your assets. For financial assets, this should include the instrument name, account number and value at the time of writing the will. Property should include the property address. 

The value of assets often fluctuates, so it is better to mention how much each beneficiary will receive, in percentage terms rather than absolute numbers.

It is likely that your assets change over time. It is therefore useful to have a clause in the will, that explicitly provides for any changes, additions or deletions from your assets. If there is a substantial change in your asset profile, you can always draft a new will with the updated details and revoke the previous will. 

While it is not required that a will be registered, it is still recommended to do so. The main benefit of registering a will, is that it helps minimise the grounds on which a will can be challenged.

Soundness of mind, forged signatures and drafting of a will under coercion are common grounds for challenging a will. Since a registrar is present when a will is registered, it makes it more difficult to make these common objections. 

Without a will, the assets will be distributed as per the provisions of the Succession Act as per your religion. For instance, Hindus, Buddhists, Jains and Sikhs are governed by the Hindu Succession Act, 1956, and Hindu Succession (Amendment) Act 2005.

You can draft the will yourself (making sure to include all necessary information), with the help of a lawyer or even by using the services of  free online will-makers platforms. 

While you can technically select anyone to be your executioner, there are a few recommended best-practices:

  • A younger person is more likely to outlive you, but you should not appoint a minor as the executioner. 
  • It is very important that the executioner is trustworthy, not have any vested interests and understand your wishes in terms of how you wish to have your assets divided.
  • A beneficiary of your will can also be the executioner, but it is important to understand that this gives him/her greater power over the other beneficiaries if there are any disagreements on how to divide shares. 

It is recommended that you appoint a guardian for any minors that may be your beneficiaries. The guardian can act as a caretaker for the minor’s assets until they become an adult.

If there is no guardian, the minor can still hold the assets in his/her name, but it becomes very difficult for them to conduct any transactions that may be required. 

While a will is a legal document, there is no prescribed format. A will can be handwritten or typed on any document and not just the stamp paper. A Will may be revoked or altered by the owner at any time prior to his/ her death.

A probate is nothing but a copy of will, certified under the seal of court. The executor (someone who is responsible to execute the will) has to file a probate petition in the court of law and if all goes well, the probate takes six months to a year. No right as executor or legatee can be established unless a court has granted the probate of the Will.

Probate can be granted only to the executor appointed by the Will. The cost of getting a probate includes legal fees as well as stamp duty on the value of the property being willed. The stamp duty varies from state to state. Probate is very important in case of Real Estate.

A will can be challenged on the following grounds:

  • Proof of coercion, fraud or undue influence
  • Presence of a suspicious nature
  • No proper execution: in case of missing signatures of the testator and 2 witnesses
  • Absence of knowledge