Succession Planning – Wills (2)

This is the English translation of the second article of the series that was published in Lok Satta on 15th  October 2018.


Greetings! Firstly, a big thank you for the overwhelming response to the first article published last month. We received numerous emails from the readers and we will try and answer to the queries raised in our articles. 
In the last article, we saw the importance of writing wills and that every person holding any estate [or property] should undertake writing of a will. Today we will focus on how easy it is to write a will. Just about anyone can write a will as long as they take care of certain basics while writing their will. 

A will is a document that captures the wishes of the person making the will of the manner in which he desires his estate to be distributed after his demise. There is no format that is prescribed by any law nor are there any other formal requirements on the manner that a will is prepared. A will could be hand written or typed as per the desire of person making a will. Needless to say, people with bad and illegible hand writing should avoid writing wills, they are better off typing their wills. There are no requirements that a will should contain legal terms and a valid will can anyway be written with normal words that we otherwise use on a daily basis. Having said that there are certain aspects that one must keep in mind while preparing a will. 

Firstly, the language used while writing a will should be simple, clear and unambiguous. It should be such that any person reading the will should be able to understand clearly without any doubt as to the intentions of the will writer. A will is different from other documents in the sense as it comes into effect only after the demise of the person making it, who is not available to clarify his instructions as to the circumstances or the identity of the persons to whom he has left his estate. Properties forming a part of the estate or the persons to whom these are to be given should be mentioned clearly so as to avoid any confusion as regards their identification.

The second aspect to consider is to include all property especially immovable property forming the estate. Property here would refer to all that the persons holds as on the date of making the will. Care should be taken to include all that the person owns. In addition, instructions on the disposition of any future property that may be acquired in the period after the will is made and up to the person’s demise should be made in the will. This could be made by way of instructions on how the residual assets that are not specifically bequeathed to any specific person in the will are to be disposed.

The third aspect while writing a will, especially in cases where the person writing the will chooses to exclude natural heirs or when the estate is not proposed to be distributed equally between the natural heirs or when a significant portion of the estate is proposed to be given to any person who is not a natural heir or when a significant portion of the estate is to be given for charitable purposes to the exclusion of natural heirs, is to explain the reasons for doing so. It is prudent to provide explanations as to the background and reasons for doing so. For example, a parent may feel that one of his sons requires additional monetary support and hence desires to leave a higher share for such son or a person may want to leave a large share of the estate to charity rather than distributing it amongst the children. In such cases explaining the reasons behind such actions would avoid any ambiguities that may arise subsequently.

The fourth aspect is to meet the legal requirements of a valid will, which is that a will, prepared by an adult being of sound mind, must be attested by two witnesses. The witnesses who attest the will must be clearly identifiable by capturing their names & addresses in the will. In cases where the person making the will is old or is ailing, it is prudent that the will is supported by a medical certificate by the family physician who is otherwise familiar with the person making the will or alternatively where ever possible to have the family physician as one of the witnesses to the will.

Thus, it can be seen that if above guidelines are kept in mind and followed just about anyone can write a will! In case you have any queries please write to us by email on email mentioned below.