The Importance and the Consequences of Writing a Will – The Wire

The COVID-19 pandemic is a prodigious global health crisis and perhaps the greatest challenge the world has seen ever since World War II. It has the potential to create devastating social, economic and political crises that will leave deep scars in the pages of world history. A lot of it can already be seen: Employment issues, recession, economic hit, migrant labour crisis, lack of jobs, no liquidity, cash crunch, breaking of supply chains and many such problems.

With the alarming rise in cases in India, even the youth are now beginning to re-think their future prospects because of the uncertainty that the pandemic has led us to. Times like these lead us to evaluate and introspect on what can be done to protect our loved ones.

Irrespective of age, sex, caste, creed, ethnicity, geographical differences and other factors, individuals are now interested in understanding the law governing the drafting, interpretation and execution of a will. In this background, we shall now attempt to understand the importance and the consequences of writing a will.

Understanding the legal document

A will is a legal declaration of the intention of a testator (the author) with respect to property which she desires to be carried into effect after their death. Every person of sound mind not being a minor is entitled in law to dispose of his property by writing a will.

Codicil, on the other hand, is a written instrument made in relation to a will, explaining, altering or adding to its dispositions, and is deemed and stated to form part of the will.

A will is liable to be revoked or altered by the testator at any time as long as she is competent to dispose of her property by will. A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void and cannot be enforced in law.

The Indian Succession Act, 1925 is the codified law applicable and governing the law of succession and in case of any dispute, one has to look at the provisions, the interpretation and the jurisprudential developments under this law.

A will can be written at any time during the lifetime of a person but can be executed only after the death of the testator. A will can be changed a number of times and there is no legal restriction on it. However, it is advisable to not make very frequent changes for several legal reasons. A will can also be withdrawn or cancelled by the testator at any time during their lifetime.

Legal requirements

The testator should mandatorily sign or affix his mark to the will. In case of incapability, it can be signed by some other person in his presence and under his directions. This marks the intension to give effect to the writing of the document as a will, which should be attested by two or more witnesses, each of whom should have seen the testator signing the will.

However, suspicion may arise where the signature is doubtful or when the testator is of feeble mind or is overawed by powerful minds interested in getting her property or where the disposition appears to be unnatural, improbable and unfair or where there are other reasons to doubt the testators free will and mind. The nature and quality of proof must commensurate with such essentiality so as to remove any suspicion which a reasonable or prudent man may, in the prevailing circumstances, entertain.

Registration of a will

From a reading of Sections 17 and 18 of the Registration Act, 1908 which mandates registration of legal documents and instruments and provides a conclusive list it can be seen that the registration of a will is not compulsory. However, from a practical perspective, it is strongly advisable to register one to avoid any conflict or future litigation.

Mere non-registration cannot be a reason to doubt the validity or genuineness of a will. However, the doubt as to the validity of a will would be less significant if it is registered and the sub-registrar certifies that it was read over to the executor who, on doing so, has admitted the contents as well.

Once a will is registered, there is no scope for destruction, alteration or tampering with the document. More importantly, there is no stamp duty payable on registration and hence no overhead/hidden costs are involved. Therefore it is advisable that a will is registered.

Validity of a will

While there is no specified format, to avoid litigation and disputes, it is advisable that the will is written in clear, precise terms and the intension of the testator is mentioned with clarity of thought, precision and accuracy. Usage of technical words or terms of art are not only unnecessary but should be discouraged. The language used should be simple, leaving no scope for ambiguity. Doubtfulness, vagueness and ambivalence are all aspects to be completely avoided when drafting a will.

A declaration that it is the first and last written will and that it is devoid of any coercion, fraud and the testator understands the consequences of writing and executing the will are some points which help protect the integrity of the document. Mentioning that the testator has a disposing state of mind and has understood the nature and effect of the dispositions should also be emphasised upon.

All details of the assets/properties should be mentioned clearly to avoid disputes as to their identification and inclusion/exclusion. All details of the beneficiaries should also be mentioned. If the testator intends to appoint an executor who, after the death of the testator, will be responsible to ensure that assets/properties are distributed as per the will, then such intention to appoint an executor and her details thereof should also be clearly mentioned in the will.

The meaning of any clause in a will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other. If the same words occur in different parts of the same will, they should be taken to have been used everywhere in the same sense. Lastly, the intentions of the testator need to be respected and should be given paramount importance when interpreting or executing a will.

It is with a deep heart and an un-willing state of mind that one wishes to talk, inquire and understand about the law of wills and its governance in India. COVID-19 has turned our world upside down. As they famously say, Better late than never. Perhaps it is time for some of us to start thinking on these lines, for the security, safety and protection of our loved ones, which have taken paramount importance in these troubled and dark times.

Ananya Kapoor is an advocate, Delhi high court and specializes in civil, tax and commercial litigation and estate planning. She can be reached at ananya@salilkapoor.co

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The Importance and the Consequences of Writing a Will - The Wire

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