Wish to exclude legal heirs from inheritance? Follow these steps for a watertight will

A registered will is harder to challenge as it establishes a public record.

In the ordinary course of things, people would want their family and/or legal heirs to be the recipients of their estate. However, there may be the odd case of some not wishing this to be so, for whatever reason. But drafting a will to exclude legal heirs in India requires careful planning to ensure your wishes are legally enforceable and are immune to challenges.

Legal heirs, such as spouses, children or parents, may expect to inherit under the rules of intestate succession, but Indian law grants testators significant freedom to distribute self-acquired property as they see fit.

Here’s a guide to drafting a foolproof will that can quell claims from such legal heirs in future.

Understand your testamentary rights

The Indian Succession Act, 1925, allows a testator to bequeath self-acquired property to anyone, and exclude legal heirs if they so wish.

“Excluding a legal heir (such as a child or spouse) from a will is legally permissible in India, as a testator has the right to distribute their assets as they wish,” said Rytim Vohra Ahuja, senior associate at law firm Karanjawala & Company. However, such exclusion often raises suspicion about the genuineness of the will and may result in legal scrutiny during probate or inheritance contests, she added.

Exclusions may invite challenges on grounds like undue influence or lack of mental capacity.

Explicitly state the exclusion

To avoid ambiguity, clearly name the excluded heir or heirs in the will and provide a brief reason for their exclusion, such as prior financial support or personal choice. This clarity demonstrates deliberate intent, reducing the likelihood of a court interpreting the omission as an oversight.

“Such a will should be signed by the testator and attested by two independent witnesses,” advised Shweta Tungare, founder of Law Tarazoo.

Optional steps like registration, video recording of the execution and attaching proof of medical fitness further strengthen its validity, Tungare added.

“A doctor’s certificate giving a clean chit of mental and physical health at the time of execution of the will carries immense weight,” explained Radhika Gaggar, partner (co-head - private client) at law firm Cyril Amarchand Mangaldas.

Be precise

Draft the will in clear, unambiguous terms to avoid misinterpretation. Also, include safeguards like a no-contest clause to deter challenges, though such clauses must be carefully worded to be effective.

“It's crucial to hire a qualified lawyer to draft your will, ensuring precise wording that leaves no room for ambiguity or loopholes," advised Ahuja.

Also read | The Last Word: How living wills help ensure death with dignity

Ensure proper execution and attestation

The will must be signed by the testator in the presence of at least two independent witnesses who are not beneficiaries. These witnesses play a critical role in affirming the testator’s voluntary execution and sound mind, which is vital if the will is contested.

“Witnesses are essential in proving that the will was signed voluntarily and with full awareness. Their testimony is often key in defending the will against legal challenges,” pointed out Tungare.

“However, a witness is not required to have read the will,” said Priyanka Desai, co-founder and partner at The Fort Circle, a Mumbai-based law firm.

Register the will

“While registration of a will is not compulsory in India, it does help create a formal confirmation of existence of the will and its date,” said Gaggar. A registered will is harder to challenge as it establishes a public record.

Also read | Drafting a will online? Watch out for these common errors

Designate alternative beneficiaries

Clearly specify alternative beneficiaries, such as charities or distant relatives, to receive your assets. Detailed descriptions of assets and beneficiaries prevent misinterpretation and reinforce the intentional exclusion of legal heirs.

“Details and description of legal heirs to whom no bequest is made should also be clearly set out,” advised Desai.

Store and communicate safely

Store the will securely—such as with a lawyer or in a bank locker—and ensure that a trusted person is aware of its location.

“Proper storage of the will and destruction of any previous wills that may cause confusion is also important,” noted Gaggar.

Periodically review and update the will to reflect changes in circumstances or laws.