We have heard the adage, “where there is a will, there is a way”. This maxim may be so true during our life, but does it hold good even after our death?
If we have to have our way, even when we are not alive and kicking any more in this world, then I would suggest that we tweak this proverb a bit and say, “Will is the only way”.
Joseph and Pramila were happily married and own multiple businesses across the globe, jet-setting from one country to another quite often. They had six loving children who are grown up and take care of their businesses. The children, two of them from Joseph’s first marriage, two from Pramila’s first marriage and the other two from their present marriage got along very well with each other leaving the patriarch and the matriarch enough time for holidaying too.
While returning from one such enjoyable vacation, the car in which the couple were travelling was hit and sideswiped by a speeding vehicle from the opposite side, spinning it out of control, hitting a tree and killing both of them instantly. Their six progenies are left with loads of wealth but without a clue of how it would get distributed between them legally.
We never expect our vacations to come to such a tragic end. We do realise that we all shall die someday, but so falsely assume that the “someday” will be very distant in future. We all wish to create a lot of wealth during our lifetime not just to enable us to lead a life of comfort but also to ensure that our loved ones after our death. Isn’t it time that we take a good hard look at “someday” and take decisions for our loved ones in the event that “someday” arrives sooner, rather than later.
Joseph and Pramila had wished that their wealth and assets should be distributed equally between their six children. However, prevailing legal laws has resulted in litigation on the assets created by Joseph before his marriage to Pramila, the assets that Pramila brought with her when she married Joseph and the wealth that they created together. The siblings who hitherto were getting along so well while the parents were alive are now embroiled in a bitter legal battle, with the Court having no way of knowing what the deceased parents would have preferred.
When a person dies without a will, the legal term used for it is “died intestate”. In such a situation, all the money, property etc. of that person is distributed according to the right of representation, wherein not you but the law decides where and to whom the assets go. That’s certainly a dicey situation in which you won’t want your loved ones to be in.
Make sure your wishes are known:
If you have to ensure that your hard-earned assets and property goes to the right hands, where you had intended, it is imperative that you make sure your wishes are known before you kick the bucket. The only way to ensure this legally is to make a will.
Requirements of a valid will:
There are hardly a few legal requirements to be taken care of before you decide to write your will. The requirements are so easy to execute that it never comes as a hurdle between you and your will. The requirements are:
- You must be an adult.
- It must be in writing (it can be typed or handwritten).
- You must mention explicitly that it is your will.
- You must sign each page of the will
- You must appoint someone to be the executor of the will after your death.
- There must be at least two witnesses to the will.
How do you choose an executor?
The executor decided by you shall be responsible for carrying out the instructions in your will, settling any debts that you may have and paying any taxes your property may be subject to and then ensuring that the assets are distributed in exactly the way you had intended. Some important traits that you need to ensure that your proposed executor has would be:
- It should be someone who has the capacity to carry out the needed tasks associated with the role. He should be a person who is of good professional repute.
- It should be someone who is willing and agreeable to serve as the executor. So you need to talk to the person you are considering for that role and outline all the details in order to ensure that the executor carries out your wishes correctly.
- It should preferably a person who is closely familiar with your unique situation. A close family friend or a business acquaintance of trust would be an ideal candidate.
- It should preferably be someone in sound health and state of mind and younger to you in age. Though there is no certainty of life for anyone, a younger and fitter person has a better chance of outliving you because the executor needs to be alive after your death. It is also advisable sometimes to have either joint executors who are known to each other or perhaps a second executor too if either one of them do not survive the will.
- It should advisably be not a family member as there is a remote chance of they being related to one or more of the beneficiaries in any way and hence would have a conflict of interest.
How do you choose the witnesses?
The will need to be witnessed by at least two persons, who should be of sound mind. The witnesses need to sign the will along with the testator/testatrix and hence should be physically available in person together and at the same time along with you while writing the will. The following aspects need to be taken care of:
- They should be adults and of sound mind. Only an adult person in sound mind can witness any document legally and in the court of law. They are attesting that they are fully aware that when you signed the will, you appeared to be in sound mind.
- They should be someone who can understand what is written in the will. It is necessary since they are attesting that they know that the document being signed is meant to be a will.
- They should be someone who should be ready to testify if the need arises. If the will is disputed or there is any argument at the time of execution of the will, they might be called to testify their signature in the court of law.
- They should advisably not be members of the family for the same reason that there is a remote chance of they being related to one or more of the beneficiaries in any way and hence would have a conflict of interest.
- It is suggested by me that if one of the witnesses shall be one who is a registered medical practitioner, it would add value to the will since the person shall be authorised to testify in the court of law that you were in proper state of mind at the time of signing the will, in case of any dispute on that point.
Whom do you choose to be the beneficiaries?
The beneficiaries to your will can be anyone whom you wish. It can be either a relative or a non-relative or even a non-individual legal entity like a trust or an institution. The following points may be kept in mind:
- If the beneficiary is related to you, the nature of relationship may be mentioned properly.
- If the beneficiary is not related to you, it may be mentioned how you are known to that person.
- If the beneficiary is a legal entity, then the nature of activity carried out by that entity and its legal address and identity may be mentioned.
- If the beneficiary is a minor, it is advisable to mention the full details of the minor’s legal guardian at the time of making the will.
What you need to consider before you make a will:
A will can be handwritten or type-written, it need not be on any stamp paper and not needed to be notarised too. However, some basic points that you need to keep in mind before you decide to make a will are as follows:
- Legal Age: You should be an adult in order to make a will. There is no upper age limit for making a will but it is always advisable to make a will as soon as you feel that you have enough wealth and that your family is complete.
- Testamentary Intent: You should clearly express your intention in the will to make that particular document valid in the way you intend. You should include in explicit language, the words such as “This is my last will and testament”, which is essential to avoid doubt or confusion about your intention and the purpose of the document.
- Testamentary Capacity: You should be of sound mind to create a valid will which means that at the time you are making the will, you clearly understand that you are creating a will, the nature and full details of the property and assets you own at that time, and to who you are leaving your property. It may be pertinent to note that even a person with Dementia or Alzheimer’s can be proved to be of sound mind, if he is lucid at the time of writing and signing the will. If you feel that there might be any doubt about your mental condition at the time of signing, it is advisable to attach a certificate from a medical practitioner affirming your mental condition and make a mention of the same in the will.
- You should sign your will in the presence of the two witnesses. Your signature only will complete the will as your attestation that it is your will and you agree to the contents mentioned therein. It should also be mentioned before the signature that you are signing voluntarily and free of fraud, without any coercion, duress or undue influence.
Probate of a Will:
Probating a will means obtaining a copy of the Will certified under the seal of the court of law. It is conclusive evidence of the validity and due execution of the Will and your testamentary capacity. A probate granted by the court to your will establishes the Will from the time of your death and renders all the intermediate acts of the executor as valid.
Application for probating a will has to be done either by the executor or by one or more of the beneficiaries to the will providing all the necessary information as sought in the application. On receipt of the application, the court shall issue notices to the next of kin of the deceased to file their objections, if any and also issue a general public notice in the newspaper before granting the probate.
Dying without a will is much similar to playing a game of chance, where you have no idea what the outcome will be. Do we really need to play the game of chance with the lives of our loved ones? Why not take the time to write a will? Spending a little time to write a will today can help you enjoy many years to come, without the Damocles’ sword of “someday” hanging over your head.
I am assuming that you don’t spend your last rupee the day you take your last breath. If that is true, you surely would need to have a Will in place. Even if this article may not have answered all your questions about Will, I am sure you would be feeling more confident when you sit down to write your Will.
In order to ensure that your loved ones lead a stress free happy life enjoying your hard-earned property after your death, then Will is the only Way!