Essential Steps and Ten Commandments for Creating a Will That Stands the Test of Time

How to Create a Will That CanNot Be Easily Challenged?

Introduction

Creating a comprehensive and legally binding will is essential to ensure that your assets are distributed according to your wishes after your passing. However, it is crucial to draft a will that cannot be easily challenged to prevent potential disputes among beneficiaries. In this article, we will explore the key considerations and steps involved in creating a will that is less likely to be contested. Additionally, we will present the ten commandments for writing a will to help you navigate this process effectively.

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Why Drafting a Will is Important

Drafting a will is a vital step in estate planning as it allows you to specify how your assets should be distributed upon your death. By creating a will, you gain control over the disposition of your property and provide clarity to your loved ones regarding your wishes.

The Basics of Drawing Up a Will

To create a will that is less susceptible to challenges, it is essential to meet the fundamental requirements set forth by the law. In India, the basic requirement is to have the will signed and witnessed by two individuals in the presence of the testator or testatrix. The law does not impose specific formalities or formats for the will itself, providing you with the freedom to tailor it to your preferences.

Understanding the Purpose of Registering a Will

While registering a will is not a common practice, it can serve to authenticate the signatures and provide certainty about its genuineness. Registering a will does not comment on the contents of the will but helps mitigate potential challenges to its authenticity.

The Importance of Naming an Executor

Appointing an executor in your will is highly recommended. The executor will be responsible for carrying out your wishes and instructions after your passing. It is advisable to choose someone you trust, such as your spouse, child, or a close friend, who will act in accordance with your intentions.

Maintaining Separation between Executors and Witnesses

To reduce the chances of challenges, it is advisable to keep the roles of witnesses and the executor separate. One witness can be a doctor who certifies your sound mind and body at the time of signing the will, while the second witness can be a lawyer or any independent individual.

Additional Considerations for Creating a Will

Beyond the fundamental requirements, there are additional factors to consider when creating a will:

    Additional Considerations for Creating a Will

Asset Valuation:

It is not necessary to mention the current value of your assets in the will, as their worth can fluctuate over time. However, providing an itemized list of your assets as of the date the will is made is advisable.

Succession Law in Interfaith Marriages:

In interfaith marriages, such as between a Hindu and a Muslim, the applicable succession law in India would be the Indian Succession Act.

Revoking or Amending the Will:

It is common to amend a will due to changing circumstances. You can create a new will or make amendments, known as codicils, to the existing one. Regularly reviewing and updating your will based on significant life events or changes in your estate is crucial to keep it accurate and relevant.

Special Considerations for NRIs:

If the legal heirs are non-resident Indians (NRIs), compliance with the Indian Foreign Exchange Management Act (FEMA) regulations becomes necessary during the succession process.

Preparing Wills for Indian Property from Abroad:

Individuals residing abroad and owning assets in India should consider preparing two separate wills—one for their global assets outside of India and another specifically addressing their Indian assets. The Indian will must comply with Indian laws.

Challenges to Registered Wills:

While a registered will is less likely to have its authenticity questioned, it can still be subject to challenges. Registration helps mitigate potential disputes but does not entirely prevent them.

Ten Commandments for Writing a Will

To help you navigate the process of writing a will effectively, here are the ten key steps, in simple language, for writing a will:

Choose Where to Write Your Will:

You can write your will on plain paper as there is no specific format mandated by law.

List Down All Your Assets:

Make a detailed list of all your assets without mentioning their values. Include only assets that you have rightful ownership over.

Specify Beneficiaries and Executor:

Clearly state the beneficiaries, executor, and guardian for minor children, if applicable. Share the broad details of your will with the executor. It is advisable to have different individuals as beneficiaries, executor, and witnesses. Align nominees and beneficiaries for specific assets, if possible.

Select Two Witnesses:

Choose two witnesses, one of whom can be your doctor. The other witness can be a lawyer or any independent individual.

Sign the Will:

You and the witnesses must sign the will. The witnesses don’t need to know the contents of the will. It is advisable to have the doctor confirm your sound mind while writing the will. Consider recording a video of the process of writing and signing the will. If you create a will online, a digital signature is not valid. Take a printout and sign it.

Optional Registration:

Registering your will is not mandatory but can provide authenticity to the signatures and will. Registration does not affect the content of the will and does not make it immune to challenges.

Amend the Will:

You can amend or revoke the will at any time, using a codicil to make changes. Review and update your will after major life events or when you add or dispose of assets.

Consider Forming a Trust:

If you have a family business, you may consider forming a trust. Transferring property to a trust may attract stamp duty charges but offers protection against bankruptcy.

Special Considerations for NRIs:

If you are an NRI (Non-Resident Indian), you can have separate wills for your international and Indian assets. The Indian will must comply with Indian laws. Note that FEMA (Foreign Exchange Management Act) rules apply for asset transfers to NRI legal heirs.

Consequences of Not Writing a Will:

If you do not write a will, your assets will be distributed based on your religion’s personal law. In the case of interfaith marriages, the Indian Succession Act will apply. The court will appoint an executor in the absence of a specified one.

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Additional Points

Executor:

An executor is the person responsible for distributing the assets according to the will.

Probate:

Probate is the legal validation of a will by a competent court. It is required for wills signed in Bombay, Madras, and Calcutta, and for assets located in these places. Probate is advisable when dealing with real estate properties. There is generally a time limit of 7 years to obtain probate after an individual’s demise. Some future buyers of high-value properties may insist on probate to mitigate future litigation.

Remember, writing a will ensures your assets are distributed as per your wishes, providing peace of mind for you and your loved ones. It is recommended to seek professional guidance to ensure your will is legally valid and accurately reflects your intentions.

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