How to write a watertight will

How to write a watertight will

* Priyamvada Birla of the Birla family willed away her property to an outsider. The Birlas have been contesting the will in court since August 2004.
* Dhirubhai Ambani built a business empire that earns Rs 75,600 crore now, but seemingly didn't leave a written will. His two sons, Mukesh and Anil, are now fighting for pieces of the empire.
* Parveen Babi, an actress who lived a solitary life towards the end, left about Rs 4 crore, but no will. Now, people claiming to be her relatives are emerging from the woodwork.



They were the rich and famous of India. Thanks to what they have or haven't passed on, the harsh glare of arc-lights on them and their near ones refuse to die down even after they have passed away. And these are some of the most famous cases that have come to light recently. Across India, as in the rest of the world, countless people across generations are fighting over what they claim to be rightfully theirs. The aftertaste of all this is usually not pleasant.

Much of this clamour and unwanted glare can be avoided by leaving a simple and clear will. Had these rich and famous left a properly laid estate plan, or a will, so many across India wouldn't have lost their sleep for so long.

The cynic among us may say that disputes and displeasures are bound to happen to these people, because the pot of gold they left behind was worth the fight. But is it only the rich, those who have a veritable fortune to give away, who attract trouble? A glance around is enough to convince us that it's not so. Even the smallest of properties are contested for. Also, wouldn't you like your near ones to be left in peace?

Some typical responses from those who aren't inclined to write a will are: "I hardly have much money to will away", or "I am not old enough to write a will". It doesn't matter how much we have or how old we are, given the realisation that we don't know when death would strike. Our parrying has to do with the way we take to death. We procrastinate, ironically bringing us closer to death before we have had a chance to set things in order.

But we, too, shall pass. A carefully drafted will will go a long way in ensuring that those who would cherish your memory do so in tranquillity and warmth. Here's a guide to making an incontrovertible will.

Making a Legal Will
The Indian Succession Act, 1925 governs wills in India. It doesn't tell you any format for preparing what would be considered a legal will. But the actual job of writing a will could be simple. It can be as short as a few words - say, "All to wife" - or you can detail it over several pages. You can write it on plain paper in the manner you want. Some are even allowed to make oral wills - Armed Forces personnel engaged in war or at sea, mariners at sea, and Muslims, who are governed by Muslim personal law.

A will must be signed or marked by a thumb impression of the testator, the person making it, and must be attested by at least two witnesses, who can later verify that the will was signed voluntarily and in their presence.
Heinrich Heine,
18th century German Romantic poet

Then there are the details you need to heed if you want to make the will watertight. Lawyers advise that the signature or thumb impression be placed in a manner that indicates that there was an intention to sign the will - in other words, that the person wasn't in any doubt about the will. If the text of the will finishes at the end of a page and the signatures are on the next page, which doesn't contain any part of the will; its sanctity can be disputed.

The selection of the witnesses, those who will have to stand by the authenticity of the will, is important. It's easier to choose a close relative or friend. But if a witness or his spouse is a beneficiary of the will, the bequest to that person will not be valid. It's also desirable to have a witness who is younger, so that he can outlive the testator. A doctor's name as a witness lends some weight.

There is no need under law to register a will. The registration of a will, by itself, doesn't make it genuine. Priyamvada Birla's will, which is registered, is still being contested in court for its authenticity, among other things. "A will without registration is of equal value [as compared to a registered one] in the eyes of the law," says Arun Khosla, a senior advocate based in Delhi. Nonetheless, registration is recommended because it confirms the legality and ensures that a safe copy is kept.

For getting a will registered, the witnesses should accompany the testator to the registrar's office. If the testator can't travel, the will can be signed at a place convenient to him. Once signed, it can be kept in the custody of the registrar. During the lifetime of the testator, nobody except him or his agent is allowed to obtain a copy of the will. After the testator's death, anyone can get a copy of the will by submitting a copy of the death certificate.

Giving What, And To Whom
You are free to make a will for all kinds of movable and immovable property owned by you. Apart from land, cash and household belongings, property could consist of investments in shares, fixed deposits, and so on. If you have a joint family property, you can bequeath only your share, not the whole of it.
Napoleon Bonaparte,
Emperor of France, 1857

Apart from tangible assets, you can also pass on things of negligible monetary value that you have cherished and would want to be preserved - say, your old vinyl records. These may be of little value for anyone else to claim a stake, but because they are of great meaning to you there is no harm in deciding their future keeper too.

Mind you, the law doesn't give you complete freedom in deciding the heirs themselves. Under the Hindu Adoption & Maintenance Act, 1956, the specified dependants of a Hindu testator are permitted to claim maintenance allowance from his property, even though his will may not bequeath anything to such dependants. So a widow, minor children, unmarried daughters and parents of the testator can claim maintenance if they aren't financially sound.

A Muslim can will away only a third of his net assets. The rest of his property has to be distributed among heirs according to rules specified by the All India Muslim Personal Law Board, which interprets religious or traditional laws for the community. However, if all the heirs agree, the one-third limit can be exceeded, and whatever is left can be distributed in favour of any of the heirs. The idea is to give all legal heirs their due rights.

Avoiding Disputes
An ambiguous or incomplete will can spell more trouble than not having a will at all. Of course, you will seek the help of your lawyer in the process. But it's for you, too, to ensure that succession should happen in the manner desired. The best way is to write the will in a simple language, leaving no scope for ambiguity. It's recommended that you write the will in a language you have always known.

In the beginning, mention clearly whether it's your first or last will, and if it's not the first, whether the previous will(s) would stand cancelled.

Lawyers say that the most common ground for contesting a will is by trying to prove that the testator was not of sound mind or in stable condition at the time of making the will. To avoid such an objection, make a clear statement that you are making a will in your normal state of mind and without any pressure from anyone. This is where a doctor, as a witness, can acknowledge your sound state of mind. The other way out is to start making a will early in life, which would make it much more difficult to prove that the testator was not of sound mind than if the will is written when he is much older.
The Morals With The Mores

You pass on to your family the wealth you have accumulated over your life, hopefully making them financially secure. But throughout your life you may have held certain values to be more sacrosanct than wealth - how will you transfer those? You may have strictly kept away from liquor and tobacco. You may have been a follower of a spiritual guru, who was a guide too. Or you may have great lessons that you learnt from the mistakes made in your life. Under law, you can't force your inheritors to subscribe to any of these views perforce. But wouldn't you like to pass on some of these values and experiences to your children or grandchildren? If you do, the ethical will is the way to go.


Ethical wills originated as a Jewish tradition around 3,000 years back. Jews used to write such wills to impart instructions of ethical and religious nature to their descendants. An excerpt from a 13th century Jewish will gives interesting insights into their traditions: "I earnestly beg my children to be tolerant and humble to all, as I was throughout my life. Should a cause for dissension present itself, be slow to accept the quarrel; seek peace and pursue it with all the vigour at your command. Even if you suffer loss thereby, forbear and forgive, for God has many ways of feeding and sustaining His creatures."

Ethical wills aren't accepted as legal documents that can be enforced. So no witness or probate is needed. It is a way to share your values, lessons, feelings, or even make confessions to family members. You would have toiled to impart the best possible education to your children, to imbibe in them your family's values, and to build a rich estate they can enjoy. Once you aren't there, the estate will go to them. But the legacy of the values and experiences that founded the property may fade from their memory. Now you know how you can keep them alive.

Then, detail every property you wish to pass on. Mention everything categorically - name of banks, branches, account numbers, fixed deposit numbers, sale deeds of immovable property like land or house, and the value of these assets (as on a particular date). We go back to the Birla will - in it, Priyamvada didn't mention the value of her legacy, but reports put it at Rs 5,000 crore. BW calculations showed that her legacy would be worth Rs 1,200 crore or so.

Often, wills are also contested on the ground that the person didn't have the property in the first place to will it away. That is, he didn't have title of ownership to the property. If this can be proved, the will would be void. So it's better to attach a copy or the proof of ownership, too.

Then define the legal heirs to whom you want to pass on. Mention what part of the estate goes to whom and in what quantity. In case one of the heirs - say, one of your two sons - gets a larger share, state why you wish to give him more. Why has been the other one deprived of your estate? Was it his misconduct that discouraged you? If the reasons are mentioned in the will, the deprived heirs will be on a weak footing if they wish to contest it in future. Besides, if there is anyone (not necessarily a blood relation) who rendered services you wish to repay through the will, do mention the name of such heirs. Under the law of succession, this kind of a relation will not be covered as a legal heir.

If no will is made, the deceased's property will be divided among the legal heirs as laid out in the Hindu Succession Act, 1956. Apart from Hindus, the Act governs Buddhists, Jains and Sikhs. The Indian Succession Act, on the other hand, governs followers of all other religions, except Islam. By any of these laws of succession, if some of the legal heirs do not object, the others can get the property in their name by proffering a no-objection certificate.

Where the stakes involved are huge, it is advisable to have more than one executor to ensure that the will is properly enforced.

One of the lesser known ways of ensuring a indisputable will is keeping a video recording of the testator making the will in presence of witnesses. It is well accepted in courts of law these days. "But it doesn't give full guarantee that it was written without undue influence. It is assumed that a sound state of mind of the testator will be visible, but the undue pressure may not be reflected in the video clipping," says Jayashree Shukla, an advocate practising with Dhir & Dhir Associates.

Lawyers warn that almost every will is contested. Indeed, property stokes a deep instinct in most humans, urging to get for themselves even what isn't deemed theirs. And the law lets them, too. "This [challenge of a will] is the lengthiest possible litigation, as it calls for so many witnesses in order to contest the will," says Arun Khosla. "And unlike other litigations, there is no moratorium as to when the will can be challenged." He cites an example where a son contested his father's will 42 years after his death.

Another case may arise. If the property you pass on to, say, your son through the will was nominated to your wife, then who gets it? On various occasions, courts have held that the nominee doesn't become the owner of the property. He or she is just entrusted with its custody. So if the legal heir is different from the nominee, then the will will have its way.

Where There's No Will
The very essence of a will is that you may not like to entrust your estate to all your family members. But if there isn't any, your estate will be distributed equally among the legal heirs according to the laws governing succession (mentioned above).
Philip Thicknesse,
Esquire, Bologne in France,1796

Your self-acquired property, as well as your share in ancestral or joint-family property, will be first divided equally among the Class I heirs. They include wife, sons, daughters, and the specified heirs of a son or daughter who has already passed away. If there are no Class I heirs, it will devolve equally upon the class II heirs - father and the grandchildren of your son or daughter.

However, even today, the laws of natural succession in India favour the male heirs over the female ones. In addition to their share in the father's share of a joint-family property, they have a direct right to such a property, while female heirs have right in their father's share only. But this may change soon. A Bill pending in Parliament seeks to amend the Act to give equal rights to female heirs.
Elizabeth Orby Hunter,
Baroness of Lincolnshire, 1813

However, succession in this way isn't always easy. There can be disputes - heirs can get relinquishment deeds (giving up their shares) signed from other heirs, and so on. Also, one needs to get a succession certificate from the court for getting the property transferred in his name. Getting a succession certificate can take long and entail charges in terms of stamp duty and court fees.

Making Changes
For various reasons, you may need to keep on updating your will from time to time. You may want to do so if you'd written the first one at a young age, or if your relations with some of the heirs has changed substantially, or there's some more property to give away. The changes can take the form of a Codicil, an appending document that can consist of minor additions, deletions or alterations to the original will. A will should be updated even if the value of the assets changes.

The Codicil, like the original will, has to be attested and executed the same way. If the original will is revoked or cancelled, it doesn't lead to an automatic revocation of the Codicil. Its sanctity would hold unless the testator intended to cancel the Codicil while cancelling the original will.

Ensuring Execution
Here comes the role of an executor, who should be mentioned as such in the will. Again, like for witnesses, an executor must be appointed with great care, because he is the person authorised to ensure that your will is carried out. Therefore, he should ideally be a trustworthy person, younger in age so that he outlives the testator.
David Davis,
angry husband in Clapham, England, 1788

The law confers on him the responsibility of being a legal representative who will collect money from the debtors of the testator, pay off his debts, and then distribute the residual property in the prescribed manner. What enables him to do so is the probate document, which is issued to the executor. This document is the copy of the will certified by court. It's important to obtain a probate, as without it, the beneficiaries cannot establish their rights to the property.

In some states you need a probate, while in the others a no-objection certificate from the legal heirs would do. The Indian Succession Act says it's necessary to obtain a probate if the case falls under the state of West Bengal or the high courts of Mumbai and Chennai. For the other states, you would need a probate if the ruling high court makes it mandatory.
John Moody ,
boot maker, to a Baronet with political aspirations, 1806

To obtain a probate, the executor has to file an application with the court. It has to mention a proof of death, that it was the last will, that he was named as executor in the will, and the amount of assets which will come in his hand. Apart from the executor's or the beneficiary's signature and their verification, one of the witnesses is also required to verify it. On receiving it, the court will ask the family members to file their objections, if any. After the objections are sorted, the probate is granted to the executor. This is the process that usually drags on and may involve substantial costs, too. Stamp duty, as a certain percentage of the total estate, has to be paid to the court. It could be a beneficiary who has to bear the costs. If the beneficiary is a minor, the person appointed as the guardian will have to bear the costs.

If an executor is not mentioned in the will, it can be sorted by an administrator appointed by the court.

Limiting Tax Burden Of Beneficiaries
A will can be made in a manner that minimises the tax incidence of the beneficiaries.

If you pass on an estate not to your heirs individually, but to a Hindu undivided family (HUF), then such a transfer will be treated separately under the tax laws. Otherwise, if the property is transferred to an individual heir, it will be taxed in his hands. Therefore, transferring some of the property to the HUF of your heirs can save on individual incidences of tax.

There's yet another way. You can create a private trust by transferring some assets to it. As a separate legal entity, under the present tax laws, its income up to Rs 50,000 would be exempt, provided the beneficiaries of the trust don't have their own taxable incomes and do not receive income from any other trust. If the beneficiary is a minor, then, too, assets can be transferred to a trust with the condition that the income from it be accumulated and given to him on coming of age. This way, the minor's income will not be taxed in the hands of the parents.

But don't break your head over how to save taxes - that, after all, isn't the main consideration when you write your will. Sudhir Malik, a Delhi-based chartered accountant, says: "Taxes shouldn't come in the way of passing on your estate in a manner you would like to." Passing it on is the first and the most important point.

The question you should ask yourself is: would you like your loved ones to run around to claim inheritance, or would you want them to inherit the fruits of your labour peacefully? If you opt for the latter, now is the time to write your will.