S Lakshmi (name changed) a Mumbai-based retired professional opted to write a Will after her husband’s death. She wanted her younger son to inherit all her wealth.
Her family’s relations with her elder son has been strained for the last ten years. Neither her deceased husband nor she wanted the elder son to inherit anything. She sensed the possibility that her Will may be challenged by the elder son in the court of law.
Her advisor suggested her to record the video of the process of signing the Will and keep the recording safe with her Will, as a proof of the genuineness.
Ignore making a Will at your own risk
Will is a document that records the wishes of an individual pertaining to a transfer of his assets after he dies. Hence, writing a Will is a must if you own assets and intend to pass it on to the persons of your choice, say most financial planners.
A will can be revoked or changed as many times as one wants. The maker of the Will (testator) is free to dispose of his property that is recorded in his Will the way he wants. The Will comes into effect only after the testator dies. The last Will of the testator prevails nullifying all previous Wills written by him.
There are two challenges most individuals face when it comes to estate planning. First, not many people write a Will and second many Wills lack on one count or the other such as not following procedural requirements and not updating the Will timely.
Many individuals still associated the idea of writing a Will to death. Some think that Will writing is what rich people do. But most ignore the fact that Will enables the asset owners to transfer assets to the persons they chose, after the death of asset owners.
“There is a general apathy towards estate planning. Most individuals do not think that they need to write a Will. If you want your assets to go to people you want, better write a Will,” says Sandeep Nerlekar, MD & CEO, Terentia – a Mumbai-based estate & succession planning advisory firm.
Second challenge in estate planning is to write a Will that won’t be contested. Video recording of the Will writing process comes into the picture when one wants to ensure that the Will goes unchallenged.
“Though it is not mandatory to video record the Will writing process, it is advisable to do so if you want to reduce the chance of Will getting contested in the court of law,” says Anju Gandhi, partner with SNG & Partners a legal firm. Video recording of the process can be used as evidence by the court to ascertain the genuineness of the Will, she adds.
The video recording can be done by using a smartphone or some handheld camera. You can also consider hiring a professional for Rs 2000 to Rs 5000.
“Though it is not a legal requirement to video record the Will, we do advise video recording of the Will writing process because it makes obtaining probate easy,” says Neha Pathak, head – trust and estate planning, Motilal Oswal Private Wealth Management.
Probate is a copy of the Will certified under the seal of a competent court of law with a grant of administration of the estate of the testator.
Make it look like a video, not a photograph
If you are going to do it yourself, ensure a few points while recording the Will signing process. Say something on camera to make it look like you are healthy. For instance, you can state your name, the date of that day, the place or city in which you are at the time of recording, and so on. You should also specify that you are writing your Will.
“Such details can establish that the testator was in good health, had a fair idea of what he was doing and was not under any pressure to sign the Will,” says Anju Gandhi.
The testator can also read out the initial paragraph of the Will. This need not contain the vital contents such as which asset goes to whom. It can remain confidential.
“Video recording must capture the testator and the witnesses signing the Will. You may also want to video record the presence of the doctor certifying the fitness of the testator,” says Neha Pathak. This makes it an evidence difficult to challenge in the court of law.
When video recording of Will is preferred
There are a few situations in which the video recording is recommended. “It is advisable for all age groups to be video-graphed not only aged or with health issues - as it establishes the execution of the will as a bonafide action and that there was no fraud or undue pressure” says Anju Gandhi.
Many a time Wills signed by very old persons are contested in the court of law, stating that the Will was obtained by coercion or some other unfair means. If one chooses to video record, then it helps in proving that the testator at the time of signing of the Will was in good mental health and was not under any influence or coercion.
A point to note is video recording does not replace the Will document. It simply proves that the signed Will document is one signed by the testator as he wished.
Sandeep Nerlekar recommends video recording of the Will if you expect a possibility of the Will getting contested in the court of law. A divorce, estranged legal heirs, ongoing family disputes especially for money matters, pending family settlements are some of the scenarios in which you should ensure that you go for a recording of the Will.
Even after you video signing of your Will, you are not done with your responsibility. You have to keep the Will document safe. You may choose to keep the video recording of the Will along with the document. Many firms in estate planning business which are also executors to Will in some cases offer to safe-keep the Will along with the video recording. In some cases, the video recording is kept with the executor of the Will.