A woman in her sixties walked into the office of HelpAge India in Delhi recently with a strange request. She wanted to write a will and bequeath her property, including two flats in prime locations, to HelpAge India.
“We were honoured that the lady wanted to bequeath her entire property to HelpAge India after her death. At the same time we wanted to ensure that she drafted her will correctly so that there would be no complications later,” says Anup Khosla, financial advisor, HelpAge India.
Indeed, drafting a will, and drafting it correctly, is of paramount importance if you want your possessions to be disposed of in a certain manner after your demise. Section 2(h) of the Indian Succession Act, 1925, defines a will as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. The testator is the one who makes the will. The only condition that the law lays down is that the testator should be a major and of sound mind. A differently-abled person can also make a will as long as the person “knows” what he or she is doing.
While Hindus, Christians, Sikhs, Jains and Buddhists come under the purview of the Indian Succession Act, Muslims are governed by Muslim personal law. In the absence of any will, first class heirs, including daughters, sons, wife and mother have an equal share in the property.
Making a will is a fairly simple process. It can be written on a piece of paper, nominating an executor of the will with the signature of the testator and at least two witnesses. You don’t really need a lawyer while preparing a will. But often people make so many mistakes in their will that it is better to do it with legal help.
“A will can be challenged in a court of law, and the court can even strike down one that is not very clear,” says V.K. Verma, a Delhi-based lawyer and author of the book Making a Will Made Easy.
According to Verma, three out of four people in India die without leaving a will. Many are either superstitious or as he puts it, “simply naïve”. “While some feel they might die soon after making a will and hence keep putting it off, others believe that whatever they leave will be divided among the members of the family. Nothing could be farther from the truth. Most of the property disputes arise because of the absence of a will,” he adds.
Experts say that a will should be made as early as possible. “You should make one soon after marriage or buying a property,” says Narendra Ahuja, a Delhi-based expert on wills and an activist for the rights of the elderly.
Ahuja should know. “I come across so many wills that were done with the right intentions but drafted in such a way that they are nothing more than a waste piece of paper,” he says.
Since a will is a revocable document, it can be altered at any time. It is the last will that matters once the testator dies.
“A clear will is one of the greatest services a person can do for the family. Laying down everything in detail, and distributing both the movable and immovable assets among the beneficiaries is one legacy that the person will be remembered for,” Ahuja says.
Ahuja recounts a case in Delhi when a testator stated that his spouse should continue to stay in the house until her death. Yet in reality, the lady was forced by her son to live in the garage of the house, which, technically, kept to the terms of the will.
One fundamental mistake made while drafting a will is to make the beneficiary a witness. “A beneficiary cannot be a witness to the will under the law, but I have come across people making this basic mistake. Witnesses should ideally be younger than the testator. They should be trustworthy — a doctor and a lawyer would be ideal. Choosing a witness is very important,” says Prashant Mendiratta, an advocate at Delhi High Court.
Moreover, if the testator is over 70, it’s better to have a doctor in attendance when the will is being prepared. “It always helps if the doctor certifies that the person writing the will is in sound health and capable of executing the will,” Ahuja says.
Some have even taken to video recording their wills along with the documentary procedure. “This is even better. Both the wills can be preserved and in case a problem arises in the future, the video recording can be given as additional evidence,” Mendiratta says.
It is also advisable that a will be registered. “Though registration is not mandatory, a registered will comes in handy when claiming money from provident fund, gratuity, insurance policies, bank accounts, equities and post office savings,” says Sonali Saha, a Calcutta-based lawyer.
Moreover, as B. Ganguly of the directorate of registration, government of West Bengal, puts it, “It’s a simple procedure. All that one needs to do is to go with the will and the witnesses to the nearest registrar’s office and get it registered,” he says. A computerisation fee of Rs 175 is all one needs to pay in Calcutta for registering a will.
In fact, under Section 44 of the Indian Registration Act, a testator can also deposit his or her will with the registrar in a sealed envelope. But Ahuja says that this should really be the last resort. “I would suggest that the will be kept in a bank locker and ideally with the knowledge of the spouse or the executor of the will,” he says.
In some places such as Mumbai, Chennai and Calcutta, after the testator’s death every will has to be compulsorily probated in a court of law, a process wherein the will is certified to be authentic by the court. In Calcutta, the probate fee depends on the value of the property, the highest being Rs 50,000.
HelpAge India is planning to open a dedicated department to help people draft their wills. “A wise man always leaves his house in order. We hope that more and more people realise the importance of leaving a will,” says Madhu Madan, communications head, HelpAge India.