Although a Will can be written on a plain piece of paper — and not necessarily a stamp paper — we can still make simple errors that can either invalidate the Will or bring about complications for our legal heirs.
Take the case of Mumbai-based Rajan Shah, 68. He had made a Will in January 2023; he had written it all by himself wherein he expressed his desire for his assets to be passed on to his children. However, he had not signed it himself and consequently, there was no attestation by witnesses. He believed he had written down his wishes and hence his family would not face any challenges. He was wrong. His family faced issues after his demise in May 2023.
“There were no executors appointed; while this doesn’t invalidate the Will it requires additional legal formality of filing a petition to appoint executor(s) to the will, thereby delaying access to the estate by the heirs,” Sneha Makhija, Head of Wealth Planning, Products and Solutions at Sanctum Wealth, said.
“It is of utmost importance to include all of one’s assets in the Will, including digital assets (with clear instructions), non-probate assets (beneficiary in an insurance policy), among other tangible and intangible assets,” Abhinay Sharma, Managing Partner at ASL Partners, said.
Like Shah, there are others who end up making mistakes while writing a Will. Let’s look at some of the common mistakes you must avoid while writing a Will.
Don’t forget to sign in the presence of the witnesses
Often a person making the Will makes the witnesses sign the Will afterwards at her comfort or as per availability later on. Such practice makes the Will invalid.
“In the case of Will, the requirement is not only to have the same signed by the witnesses but also that the person making the Will has signed the same in the presence of the witnesses,” Hemang Parekh, Partner, DSK Legal, said. Most people equate the signing of the Will by witnesses as a formality. “But it is important to note that the person making the Will is signing the same in the presence of the witnesses, and the witnesses are signing the Will to confirm the signature in their presence,” Parekh added.
It is essential to note that to save the Will from being challenged as invalid, one must get it signed by at least two witnesses. “Absence of witnesses to a Will can make a Will invalid,” said Makhija. She added, the witness plays a pivotal role as he needs to testify if required, in case the intention or state of mind of the testator/testatrix is questioned.
Keshav Singhania, Head – Private Client, Singhania & Co, added, “Another practice to be observed to ensure the validity of the Will is enclosing a medical certificate stating that the person making the Will is mentally fit of sound mind, and can deal with the distribution of her assets.” This is especially important in the case of senior citizens making the Will.
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Non-authentication of Will
Registration of Will is essential for the authenticity of the Will. Many people just notarise the Will during their lifetime, which is not enough. Dinesh Kadam, Partner at MZM Legal LLP, said, “Registration makes a Will more authentic as it will be treated as a public document executed before the statutory authority and it will be treated as primary evidence in case of objections taken by the caveators (interested/ heirs of the deceased), who file their objection in case of probate petition.”
“While registration of a Will is optional and non-registration does not invalidate a Will, it is always preferred that the testator follows some authentication process to defend any claims of forgery,” Narendra Dingankar, Partner at Pioneer Legal, said.
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Beneficiary under a Will cannot be a witness
The most common mistake by a testator is appointing a family member as a witness to their Will, and he is also a beneficiary as per the Will. A person who has written or made a Will is referred to as a 'testator' of the Will. A Will comes into effect after the death of the testator.
“As per the Indian Succession Act, a beneficiary under a Will cannot be a witness to the Will. If the same happens, then the bequest in favour of such a beneficiary is void,” Parekh said.
A beneficiary can be an executor or a co-executor, but never a witness. In some cases, the person appointed as an executor is aged and therefore runs a risk of passing away before implementing the Will. “This often results in implementation challenges for the Will or avoidable disputes amongst the beneficiaries,” Dingankar said. He added it is advisable to ensure that a suitable person is appointed as an executor who is competent to execute the Will and is naturally expected to survive the lifetime of the testator.
Writing the Will vaguely
Many times, due to joint properties/ shares in the properties, the testator is putting properties with vague details while writing the Will. “This needs to be avoided as it creates more confusion amongst the beneficiaries of the Will,” Kadam added.
There is a preconceived notion that a testator should write the Will in a legalese manner. “To the contrary, the testator should write Will in a clear, lucid language in their own words,” Singhania said. Write the exact address of the house you wish to pass on. If it’s a piece of jewellery from your collection, describe that piece of jewellery in detail to make sure there is no confusion later.
With families holding assets globally, they often tend to undertake Will locally in jurisdictions where they hold assets. This is a good practice. “However, often families fail to account that typically, according to law, they consider the last dated Will for disposition of one’s estate. Hence, by this, the earlier Will may stand revoked/invalid if not appropriately worded,” Makhija said.
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“It is important to keep one’s Will updated, which can be done by way of codicils, i.e., amendments made to the last Will,” Sharma added.
In order to avoid errors that can invalidate a Will or defects that can lead to legal and administrative challenges for the legal heirs/beneficiaries, it is best to consult a professional who can ensure the fundamentals for a valid Will be incorporated as well as adopt the best practices for seamless distribution of your wealth to your loved ones.
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