In drafting wills for decades now, we have realised that people avoid making them for all sorts of reasons. It’s not just that they find the concept morbid. We found that the most challenging task is to make people understand the difference between their beliefs (myths) about making wills and the law regarding wills.
There are many misunderstandings and apprehensions over drafting, signing and executing wills. Let’s debunk the most popular myths about making a will.
It’s too early to make a will
People are often concerned that it is too early or too late to make a will, but it is pertinent to note that there is no right age or time to make one. Since the onset of Covid-19, we have seen that life is unpredictable. It is advisable to make a will as and when an individual gets assets in his/her name to ensure that upon his/her death, they devolve as per his/her wishes. One need not wait for a major illness or advanced age to make a will.
A will must be written on stamp paper
People think that without stamp paper, a will has no legal sanctity. On the contrary, a will does not need to be executed on stamp paper. There is no stamp duty to be paid at the time of signing of a will. One can write a will on a plain piece of paper.
A will must be registered
Registering a will is not compulsory, even if it involves the distribution of immovable property. Section 18 of the Registration Act, 1908, provides that the registration of a will is voluntary. It is up to the person making the will.
The benefit of registering a will is that it goes to show that the will was not tampered with, forged or coerced, and was signed by a testator who was competent to do so. If a will is registered, then changes made thereafter must also be registered.
Writing a will means losing one’s assets immediately
This sounds bizarre. Some people have the misconception that they will lose their property after making a will. It is important to note that a will comes into effect only after the death of the person who has written it. Until the will writer (testator) is deceased, he/she will continue to own and possess the property, regardless of the contents of the will. A person can even sell everything after making a will.
Nominations, joint holdings in investments are good enough
A nomination is not enough. A nominee is not a legal heir. A nominee is only a trustee and custodian of an asset for which he/she is nominated and is merely entitled to collect the wealth on behalf of the legal heirs.
A will actually states who gets the property and the nominee has to transfer the property to the person receiving it.
Joint holding only makes each joint holder the owner of his/her share. Each joint holder will be entitled to deal with his/her share in his/her own will.
If there is a will, legal heirs won’t need a probate
A probate is essentially an authentication of a will by a competent court, upholding the will as valid.
Under the provisions of the Indian Succession Act, 1925, in the case of a will made by a Hindu, Sikh, Jain or Buddhist residing within the territories of formerly unpartitioned Bengal or territories falling within the jurisdiction of the high courts of Madras or Bombay, no executor can exercise their right to execute and act on a will unless a court of competent jurisdiction has granted a probate to the will.
However, if a will is made in any other part of India pertaining only to movable property, then a probate may not be deemed necessary. In principle, however, a will cannot directly come into effect. A probate is required to put the contents of the will in motion and without it, no bank, society, builder or company is likely to act on it.
Once a will is made, it cannot be changed
Again, not true. After making a will, the testator (the person who wrote the will) can make as many changes to it as desired. Amendment of a will requires a codicil to make the relevant changes. The changes must be attested and executed in the presence of two witnesses, in a similar fashion as a will.
If the original will has been registered, then the codicil must be registered as well.
Verbal instructions to family are as good as a will
In the eyes of the law, a verbal will is invalid. Further, property is more likely to be distributed between legal heirs as per the relevant personal succession laws if a written will hasn’t been made. It may so happen that one’s assets may get divided among people one doesn’t particularly like or approve of. If something has to be given to a specific person, it should be put down in writing.
Under Section 66 (f) of the Indian Succession Act, 1925, a privileged will can be made with verbal instructions in case the testator of the will is a soldier, airman or mariner. Two witnesses are required with a specific instruction that the oral instructions be put down in writing eventually.
However, if such a person dies before the instrument can be prepared and signed, such instructions shall be considered to constitute his will even though it may not have been reduced into writing in his presence or read to him.
Married daughters are not entitled to their father’s property
The Supreme Court of India has clarified and held that a daughter in a Hindu family or one that has adopted the Indian Succession Act shall have a right to her parents’ property, irrespective of whether she is married or not. The law confers equal status on both sons and daughters as coparceners in respect of intestate succession.
However, this rule – for now – is applicable only to Indian women who fall under the Hindu personal laws and the provisions of the Indian Succession Act such as Parsis and Christians, and not to other religious denominations.