Moneycontrol
Nov 08, 2017 10:15 AM IST | Source: Moneycontrol.com

Challenges that may crop up while drafting a Will

A few precautions can help you to overcome a long list of challenges that crop up at the time of writing a Will.

Moneycontrol News @moneycontrolcom

Amit Kolekar

A Will, quite simply is an instrument by which the testator (person preparing the Will) expresses his desire and wishes for distribution of his estate upon his demise. However, as simple as the concept may appear, there may be some hurdles or roadblocks which may make this process tedious and even frustrate the intent of the Testator under the Will, such as:

Appointment of an Executor:

The term executor means "a person to whom the execution of the last will of a deceased person is, by the testator’s appointment confided". An executor is named in the Will and derives his authority therefrom. This simply means it is very important to identify and name an executor who can perform the duties entrusted by the Testator.

It is also important to inform the executor and seek his consent to being appointed as an executor otherwise without valid acceptance, it could result in difficulties at the time of execution of the Will/ distribution of estate. It is recommended that two executors be named in the Will, since incase a sole executor either refuses to take the responsibility or is otherwise unable due to any reason, then the other executor may step into his shoes.

If the named executor does not accept the responsibility at a later stage, or is unable perform his duties, a competent court of law may at the request of the beneficiaries/legal heirs appoint an executor, as without an executor the management, distribution and transfer of estate of the testator would not be possible.

Probate of the Will is compulsorily in case of:

(a) Made either by a Hindu, Buddhist, Sikh, Jain or Parsi within the territorial limits of Bombay, Calcutta or Madras, or
(b) Immovable properties under the Will are situated in any of these three territorial jurisdictions, to recognize the right of the executor to deal with the estate.

Understanding Asset Inventory and Management (with a focus on Valuation):

It is ideal to make an inventory of the estate with a classification of assets into various classes, immovable property (such as land and/ or buildings), movable property (such as cash, shares, jewelry, bank balance),etc., and accordingly, the estate should be managed in a manner as to optimize the estate value, prevent erosion of value of estate and effectively manage the tax implications.

Pitfalls to avoid while drafting a Will:

The Testator should be cautious while preparing his Will, and should avoid:
i. Improper execution: Proper execution involves two major steps, i.e. the person making the Will needs to affix his signature on the execution sheet at the end of the Will, as an unsigned Will unless it is a privileged Will is not a valid instrument in the eyes of law and attestation of Will should be made by at least two witnesses, who attest the Will in the presence of each other and the Testator;

ii. Gifting property to attesting witness: If any property is bequeathed to an attesting witness in the Will, then Will shall be valid, but the bequest so made to the attesting witness shall not take effect;

iii. Using nicknames or incomplete names: The correct and complete names should be written in the Will, since in case of incomplete name, the court would have to use extrinsic evidence to understand the Testator’s intention, and in case of ambiguity, the Will would be interpreted on the basis of evidence produced/ available before the court;

iv. Improper description of property: The property must be qualified/quantified, so that a clear reference can be drawn at the time of probate and distribution of the estate;

v. Not updating your Will: A Will is revocable, i.e. the Testator can revoke his former Will at any time and/or write a codicil to amend the former Will. People often make a Will on a particular date and subsequently may acquire, assign, transfer, gift or exchange the assets (immovable and movable properties) and subsequently forget to update their Will by writing a Codicil or preparing a new Will as against cancelling the last Will;

vi. Incorrect bequest: Conditional bequest of property can be provided under a Will (e.g. the testator may put a condition for his/her daughter stating that she will get the property only if she marries within three years of the testators’ death, then such a condition is valid and sustainable). However, if an immoral or impossible condition (in the eyes of law)is imposed, then such legacy will automatically form part of the residuary properties and be distributed as per the terms of the Will associated with residuary property; and

vii. Probate: Probate of the Will shall be required in certain cases as stated above, however, at times, banks or other financial institutions insist on a Probate of Will for safety reasons, and therefore the executor will be required to probate the Will.

Grounds on which a Will can be contested:

A Will can be contested on various grounds, which at times, may be frivolous too, however, the grounds which Court may take into consideration would be:

(i) Testator being a person of unsound mind,
(ii) Undue influence or coercion on Testator,
(iii) if it can be shown that pages have been inserted into the Will after the Testator signed it or that the Testators’ signature was forged, and

(iv) If the Will has not been attested by two attesting witnesses.

Conclusion:

Preparing a Will is not so complex, if the testator is aware of and takes into consideration the provisions pertaining to appointment of executor(s), bequests in the Will and attestation of the Will. However, in case of bequests of significant assets to beneficiaries, keeping in mind succession planning, it is advisable to seek an advice of a lawyer for preparing a Will, so as to avoid causing difficulty to the executor to execute the Will by transferring the estate to the beneficiaries in smooth and unambiguous manner.

The writer is Associate Partner, Rajani Associates.
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