What to avoid in a will: Unequal shares, coercion, vague language

All of the above can lead to intra-family disputes; anyone making a will who anticipates acrimony should use of a family settlement to pre-empt it

In a recent case — Metpalli Lasum Bai (deceased) & Others vs. Metapalli Muthaih (deceased) — the Supreme Court held that a registered will carries the presumption of genuineness and that the burden of proof lies with the party disputing its validity. Those preparing a Will should exercise due care to minimise the chances of a dispute.

What is a will?

A will is a legal document that expresses how the testator’s (the person making a will) assets should be distributed after their passing. It comes into effect only upon the testator’s death.

 

“Its objective is to record the wishes and instructions of the testator regarding how their estate should be dealt with, who will benefit from it, how surviving dependants should be cared for, and who should ensure that these instructions are honoured,” says Palecanda M Chinnappa, partner, CMS IndusLaw. 

It ensures that the property is distributed according to the testator’s wishes. “Such estate planning helps avoid disputes among legal heirs,” says Darshana Velani, principal associate, IndiaLaw LLP.

Essential characteristics

The testator must be of sound mind and at least 18 years old. A will can be handwritten or typed, since both are legally valid. “It can be made on plain paper. Notarisation is not mandatory, though it can add evidentiary value in disputes,” advises Velani.

 

The will must describe all assets and how they are to be divided among the beneficiaries. There should be no fraud, coercion, or undue influence in its creation. It must be dated and signed by the testator.

 

“It must be attested by two witnesses who need to witness that the testator voluntarily and knowingly drew up and signed the will,” says Chinnappa.

 

Guardians should be appointed for minors and dependants. “It is ideal also to appoint an executor whose job will be to oversee and ensure implementation of the testator’s wishes in accordance with the will and transfer of the deceased’s estate to the nominated beneficiaries,” says Chinnappa.

Choose witnesses with care

Any person above 18 years of age and of sound mind can be a witness to the will. Witnesses should be impartial and have no conflict of interest. “A common strategy is to have one trusted lawyer and one trusted doctor to act as the two witnesses, as they make for ideal witnesses,” says Chinnappa.

 

Velani adds that beneficiaries (or their spouses) should not be witnesses, as this could lead to invalidation of their share.

Choose the right executor

An executor should be appointed to temporarily manage the deceased’s estate and utilise any revenue generated from it to settle outstanding debts and taxes. The appointment of an executor helps avoid loss of time and resources.

 

“It even reduces the scope for conflicts that are likely to occur if the courts need to be approached for the appointment of an executor and one or more family members or beneficiaries adopt an opposing view in these proceedings,” says Chinnappa.

Register the will

Registering a will is not compulsory. “However, registration would help if a will is challenged in court on the ground of authenticity of the signature of the deceased and the witnesses,” says Swarajit Dey, associate partner, Aquilaw.

 

Chinnappa also strongly recommends registration, as it helps establish greater authenticity, legal sanctity, and presumption of genuineness.

 

The process involves the testator drawing up the Will, visiting the jurisdictional registrar or sub-registrar’s office along with the witnesses, furnishing the original Will along with identity proofs of all present and any other requested documents, and paying the requisite fee.

Update periodically

A will should be updated periodically. “Ideally, the testator should review and update the will every three to five years, or upon the occurrence of any significant changes to the testator’s personal life, health, or estate,” says Chinnappa. This ensures that the testator’s wishes are correctly and comprehensively recorded.

 

The testator can modify or revoke the older will in one of two ways. They can create a codicil that modifies the existing will. A simpler and surer approach is to create an entirely new will that revokes the old one. The old will should also be physically destroyed.

 

Asset and liability details in the will should be updated regularly.

Contesting a will

A will can be contested in court on several grounds, including lack of testamentary capacity, fraud, forgery, coercion or undue influence, improper execution (not signed in the presence of two witnesses), and revocation.

 

“According to Section 89 of the Indian Succession Act, 1925, a will that lacks a clear object or subject matter is deemed invalid. If the terms of the will are vague or insufficiently definite, it is considered void for uncertainty and may be contested in court,” says Nivedita Bhardwaj, partner, King Stubb & Kasiva, Advocates and Attorneys.

 

“Wills containing illegal conditions contrary to law can also be declared void. Additionally, even after probate or letters of administration are granted, they can be revoked under Section 263 of the Indian Succession Act, 1925, if valid grounds are established,” adds Dey.

Legal remedies for beneficiaries

If a will is challenged, the beneficiaries must contest the challenge by refuting the allegations made by the person disputing the will. “The person challenging the will shall have to establish the allegation with evidence,” says Dey.

 

“Beneficiaries have to show that the challenger has an ulterior motive or no legal standing. If assets are wrongfully withheld or misused, file a separate suit for declaration or possession,” says Bhardwaj.

Proving the genuineness of a will

To establish the genuineness of a will in court, the originally-signed will must be produced. According to Section 63 of the Indian Succession Act, 1925, it must be shown that the testator signed the will in the presence of two witnesses, and the witnesses also signed in the testator’s presence.

 

“At least one attesting witness must testify in court to validate the signature. It must also be proved that the testator was of sound mind and acted voluntarily, free from coercion or undue influence. The court, through probate proceedings, then verifies the will's validity and issues a probate certificate,” says Bhardwaj.

Precautions to exercise when drafting a will

Simple and clear language must be used in a will. All assets — fixed and movable — should be listed, and beneficiaries should be named precisely.

 

Each page should have the date and the testator’s signature. “Someone trusted, impartial and capable of carrying out the testator’s wishes should be appointed as the executor,” says Bhardwaj.

 

The testator should communicate their intentions to the beneficiaries to avoid confusion and resentment. “If you are excluding an heir, then clearly state the reasons to avoid legal complications,” says Bhardwaj.

 

She also suggests using family settlement (a mutual agreement among heirs) to resolve or prevent disputes.

 

Common triggers that lead to a will being disputed include unequal distribution, oral wills (which should be avoided except in rare circumstances), coercion or undue influence, and vague or emotional wording. These should be avoided.

 

Probate and its significance

• Probate is a certified copy of a will with a court’s seal, granted by a district judge, which allows the executor to administer the estate
• If the will does not name an executor, legal heirs must obtain letters of administration from a competent court
• No one can claim executor or legatee rights without probate or letters of administration.
• Probate is mandatory for wills made by Hindus, Buddhists, Sikhs, or Jains, but not in the case of Muslims or Indian Christians