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Drafting a Will? Here's what should be on your checklist

There are a number of factors to be kept in mind while putting together the legal document.

October 23, 2017 / 11:38 AM IST

Amit Kolekar

A Will (usually in writing) is an instrument by virtue of which the testator (person preparing the Will) records his last wishes as to disposition of his assets upon his demise, which can only be enjoyed by the beneficiaries post demise of the testator. Ideally, the testator should consider the following check-list for preparing the will:

#1 Prior Preparation: The testator should decide as to whether to write down the Will by himself or to have it prepared through a lawyer (advisable, so as to avoid legal and technical glitches at a later stage), and prepare a list of all the assets (only self-acquired assets and not ancestral), situated in home country and foreign country and classify the assets into movable/immovable, nominations (if any) made in respect of immovable properties and/or movable properties (such as shares, bank accounts and other investments).

In fact, where the assets are situated in a foreign country, then a separate Will should be prepared based on the applicable laws of the respective country. Further, in case of assets held as co-owners, then only the undivided share or interest in such property can be bequeathed, and one may make a Mutual Will, wherein the spouse irrevocably bequeath the assets to the other spouse, especially, where the assets are held jointly. Additionally, one can also choose to form a family trust as part of the will, for which, the testator needs to identity the beneficiaries, fix the duration and decide the nature of the trust.

#2 Personal Information: In the Will, the testator should ideally mention the name, age and complete address of the testator as appearing on the permanent account number (PAN) or Aadhaar card, or any other identity document, together with full name of all members of the family, including the relations with each member of the family, their respective marital status, spouse and children (if any).

#3 Executors: Testator must identify at least one executor (family member or a close friend or relative), who would execute the Will in compliance of all the legal formalities and distribute the assets in terms of the Will.

#4 Funeral Expenses: The testator may make provisions for certain costs or monies reserved for funeral expenses and any special requests or last rights to be performed by the executors

#5 Outstanding Debt/ Liabilities: In case of any debt liabilities, the testator should make a provision to repay or clear the outstanding debt/ liabilities out of assets prior to distribution of assets to the beneficiaries.

#6 Bequest under the Will: Testator should ideally bequeath specific assets to a specific beneficiary, rather than bequeathing specific percentage of undivided share in each property to every beneficiary, so as to avoid ambiguity and dispute among the beneficiaries for enjoying the benefits of bequests.

Further, the testator may make various permutations and combinations so to make provision for contingencies and exigencies, for vesting of the asset in the hands of the beneficiaries.

#7 In Terrorem Clause: In Terrorem is a Latin term, which means 'fear'. In Terrorem Clause is often incorporated in the Will, where it is anticipated that Will could be challenged. The testator may, to deter the legatee(s) from frivolously challenging the Will, incorporate a clause in the will stating that in case the legatee(s) challenges the Will or any bequests, then such legatee(s) shall not receive the respective bequests made in his/ her favour and such asset will form part of the Residuary Property.

#8 Family Trust: In case of minor children, family members with special needs, old or infirm parents, testator can create a family trust under the Will, so as to make provisions for payment of monies/expenses towards education needs, medical needs, contingencies etc., and the testator should specifically mention the bequest of the assets in the trust, the object of trust, duration of trust and powers, roles and responsibilities of the trustees.

#9 Residuary Property: Any monies, assets which have not been specifically bequeathed under the Will/ not referred in the Will/ purchased after writing of the Will, becomes part of Residuary Property, and the testator must make a provision for bequest of Residuary Property, either in the same manner, as made for the identified assets or bequeath the same to the distant relatives, friend, trust, charity etc.

#10 Witnesses: Two trustworthy persons, to whom nothing has been bequeathed under the Will must sign and confirm at the foot of the Will stating that they, either individually or in the presence of each other together with the presence of the testator, have set and subscribed their respective names and signatures at foot of the Will as attesting witnesses.

#11 Doctor's Certificate: In case the testator is an elderly person, it is recommended to receive and enclose to the Will, a certificate issued by the Doctor certifying that the testator is physically and mentally in fit condition, and is in sound mind and able to comprehend and understand of what he writes.

#12 Update Nominations: The testator should update all nominations in relation to the assets in terms of the bequests made under the Will, so as to match as closely as possible with the bequest made under the Will to avoid any disputes or difficulties at the time of distribution of the assets among the beneficiaries.

(The writer is Associate Partner at Rajani Associates)
first published: Oct 20, 2017 10:10 am