Why you need to write a will

For the past six months, Delhi-based Padma Malhotra and her three children have been struggling to access what is rightfully theirs. They have been unable to lay hands on the financial assets of Malhotra's husband, who passed away in January. The emotional trauma of losing him was followed by despair at not being able to withdraw the money lying in his bank account or access his other investments. This upheaval has been sparked by a single act of omission on the part of Malhotra's husband-writing a will.

"My husband didn't leave a will and had not named a nominee," she says ruefully. So, she and her kids have been running around to prove that they are the only legal heirs. Malhotra's husband has a substantial amount of money in his bank account, but it cannot be withdrawn till the bank is satisfied that there are no other claimants. "We have submitted copies of the death certificate and our ration card as well as a letter of indemnity, but the bank is demanding more documents," says Malhotra.


In Noida, 73-year-old RR Grover is not leaving anything to chance. He has experienced at close quarters how problematic it can be if the head of the family dies without leaving a will. "I don't want my heirs to run around to get what is theirs. So I have drafted a will that spells out how the assets will be distributed among them," he says.

Writing a will

Any adult who wants to distribute his assets can write a will. "Whether you are a daily wage earner or a tycoon , you have the right to dispose of the assets you own according to your wish," says Rajesh Dalmia, a Kolkata-based certified financial planner. A will is an instrument that allows you to do so.

It is not necessary to write it on a stamp paper or even get it registered. You can write a will on plain paper and it will be as legally valid as one prepared by a lawyer. All it should do is identify you as the testator (or the person who is making the will), list out your assets and specify how these are to be distributed. Whether you type it out or write it down, it is a legal document as long as it is signed by you and attested by two witnesses.

"The only requirement is that the will should be legible. If a person is old and frail, he should avoid writing it himself and get it typed to avoid disputes in the future," says Amit Aggarwal, a lawyer with SNG & Partners, a Delhi-based law firm.


However, if there is a complication in the ownership of assets and wealth, you may need the help of a legal professional to draft the will. Such a person will ensure that there are no loopholes or ambiguity in the language that may lead to disputes later on. More importantly, he will make sure that the distribution is within the ambit of the law. "When it comes to making a will, the wishes of the testator should be legally enforceable. Therefore, consulting a professional on this matter is important," says Pavan Duggal, a Delhi-based lawyer.

Legal viability

A will cannot override the natural succession of ancestral wealth. A person cannot will away the entire inherited property. He can pass on only his share to anybody he wants, but the remaining property can be willed only to the legal heirs. Suppose a Hindu man inherits 50 lakh from his father. If he has four legal heirs, then he has only a 20% share in that amount. The balance belongs to the four heirs.

If you want to bequeath assets to people other than the natural heirs, you would need to mention the reason for doing so. This would foreclose the chances of any objection from other beneficiaries.

A will has to be attested by at least two witnesses. They should be reliable and preferably much younger than you are in order to ensure that they are alive when your will is being executed.

Sanjana Bali, a partner with KB Partners, a Delhi-based law firm, recounts a case in which the deceased had willed everything to one of his children. The other siblings filed an objection but the sole beneficiary could not prove the validity of the will because the witnesses could not be located. The matter was resolved only after the beneficiary agreed to split the assets with the others.

Such cases bring into focus the role of the executor of the will, who is supposed to oversee the distribution of your assets according to your will. "Not only should he be a reliable person, but someone your heirs will be willing to listen to," says Narendra Ahuja, a Delhi-based lawyer. If the asset distribution is not equitable, it can lead to squabbles, and unless the executor can resolve them, the matter may end up in court.


This is also the reason legal experts advise that the will should be registered. This is not mandatory, but it puts a stamp of authenticity. Registering a will can cost as little as 200-300. You can get it registered with a sub-registrar. To make it ironclad, use a stamp paper to make the will. One copy of the will is filed in the registrar records and the original is given back to the testator.

Is gifting a better option?

Instead of going through the rigmarole of making a will, one can simply gift them during one's lifetime . However, gifting has its own limitations. Once the asset is given, it becomes the property of the receiver . Experts say it is risky for a person to give away all his assets during his lifetime and then be at the mercy of the beneficiaries.

On the other hand, an individual can change his will, deleting names and adding new ones. A minor change can be done by filing a codicil instead of rewriting the entire will. This is a supplementary document which specifies the changes in the will. "One of the reasons people postpone making a will is the misconception that it cannot be altered. This is not true; you can make any number of changes," says Ahuja. The latest will supersedes all previous documents.


Appoint a nominee

One seamless option of transferring assets to your heirs is to make them nominees. All financial investments offer this facility. However, while a nomination ensures a smooth transfer of assets, it does not make the nominee the sole owner of those assets . The other legal heirs can stake a claim to them.

In a case that came up before the Supreme Court in 1983, a life insurance policyholder died without writing a will, leaving behind his mother, wife and son. His wife was the nominee of the insurance policy, but his mother and his son filed petitions, both demanding a one-third share. The court ruled in their favour, stating that the nomination only indicates that the person is authorised to receive the amount but is not the sole owner of that sum.

Making a will online

A few companies such as Warmond Trustees & Executors and Vakilno 1.com offer to make a will online. You need to register with the company and key in your personal and financial information. Once this is uploaded, the company drafts a will and sends it to you within seven days. Besides making the will, these companies help with the registration and also act as an executor. The cost of this convenience: 10,000.

However, this option works only if you have a simple portfolio and there are no conditions involved in the distribution of assets. "This is because any will with a complex structure requires a one-on-one discussion," says Sandeep Nerlekar, MD and CEO, Warmond Trustees & Executors. If you want an online will, you as well as the two witnesses need to have a digital signature.

If there is no will, the estate of the deceased is distributed in accordance with the law of succession. However, such cases usually end up in court or are settled after acrimonious negotiations. There is also a cost attached. If you apply for a succession certificate from the court because there's no will, you need to pay up to 3% of the value of the assets. This is why you should settle these issues during your lifetime. "A will is a legal document that clearly demarcates what should go to whom and bypasses all succession laws. It reduces the chances of dispute and lessens emotional distress," says Bali.


How to bequeath your digital assets

A significant part of our lives is spent online, saving or exchanging information in the form of blogs, photos, e-mails and financial data. Have you wondered what happens to it after you are gone? There is no legislation in India stipulating who will own online accounts, such as e-mail and social media, if the owner dies. "More and more, things are moving to the digital eco-system ," says Pavan Duggal, a Supreme Court lawyer, who recently got a will drafted for digital assets. The bequeathment process is similar to that for physical assets. The first step is to make an inventory. If the assets have monetary or personal value, name the person who will be the sole owner. However, many of these Websites are based overseas and your heirs may have to travel abroad for completing legal formalities.

WILL POWER - Young aspirational Indians are earning and saving like never before. But have they thought of writing a Will?

Young aspirational Indians are earning and saving like never before. But have they thought of writing a Will? Indrani Rajkhowa Banerjee finds out

YOU are young, have a decent sum parked in your bank, have just booked your second flat and have been eying an Anjolie Ela Menon miniature. These, you reason, are all lovingly accumulated for your wife and kids. But have you thought of writing a Will so that your daughter doesn’t have to run from pillar to post claiming her dad’s favourite Anjolie Ela, after you are gone? For those who have always thought a Will was something written only by the likes of Queen Elizabeth, here’s the time to pause and think of the disadvantages of not having written off your legacy while you are in a healthy frame of mind.
Are we delusional?
In Delhi, 42-year-old corporate communications executive Arvind Padmanabhan, a father of three daughters, asks “What’s the hurry? I’m not going anywhere,” when the question of a Will crops up. Arvind owns a sprawling flat in Gurgaon and a plot of land in Manesar. Like him, there are scores of upwardly mobile Indians who are enjoying the fruits of an upbeat economy and better purchasing power than their parents, who have a clear idea about who should inherit their wealth, but fail to put it on paper. Some of them even find the talk morbid. Remarks Arundhati Mukherjee, advocate, Calcutta High Court, “Somehow, the middle-class Indian still carries this mindset that a Will is the prerogative of the rich. It’s ironical how most living room conversations ridicule the late Dhirubhai Ambani who died intestate because he thought his sons, Mukesh and Anil, would continue to be united, yet delusional when it comes to taking a call on their own bit of legacy.”
Put it on paper
Lawyer Pinky Anand explains why making a Will is the important first step in estate planning. “Making a Will is the only way to be 100 per cent sure that your assets go to the people you love. There’s no harm in putting it in writing, even when you are young, how you’d prefer the distribution of your property after your demise.” Anand says it’s the lack of awareness which deters people. “Why leave anything to chance? You have the right to dispose
of your assets according to your wish. It doesn’t matter if you are a daily wager or royalty,” says Mukherjee. In fact, the death of many wealthy people, like Maharani Gayatri Devi and Priyamvada Birla, whose Wills have caused lengthy legal battles between the heirs, and has been used by legal experts to emphasise the importance of making a Will and changing it as life circumstances alter.
The rules are simple
Any adult who wants to distribute his assets can write a Will. The assets can include property, jewellery, financial investments, art and artefacts, even cash. It’s commonly believed that writing a Will entails litigation, stamp paper and registration. On the contrary, you can write a Will on a plain paper and it will be as legally valid as one prepared by a lawyer. “You can type it out or write it down on a piece of paper. It is a legal document for all practical purposes as long as it is signed by you and attested by two witnesses,” says Mukherjee. It should identify you as the testator or the person who is making the Will. You should list out your assets and define exactly who you wish should inherit your assets, and what in particular each person will inherit. You should also nominate the person or people you want to be responsible for carrying out your wishes and who will act as a guardian to your children, if they have no other parent.
“The most important thing is that the Will should be legible,” Mukherjee points out. “It’s advisable to store your Will in a safe and fire-proof place and let your executors and family know where it is stored. As for its validity, a Will is valid until revoked. You can make as
many Wills you desire, but the last one will be considered as your final one. In case you get divorced and remarry, a new Will is required to distribute your estate. There is no such thing as a joint Will, every person should have their own Will,” she adds.
Most of the legacy battles are because people die without making a Will. So, if you haven’t done so already, it’s a really good idea to prepare one. After all, it’s a simple, do-it-yourself exercise and you don’t even need a stamp paper!