Seven Mistakes You must Avoid While Writing a Will

This is in continuation to my earlier post and I strongly feel writing a will is the first step in succession planning; the peace of mind is guaranteed knowing that we have settled our affairs and taken care of our loved ones. However, all the efforts could go waste if the will has discrepancies. So below are some of the mistakes one must look to avoid....

1. IMPROPER EXECUTION

Your will needs to be properly executed or it can be a useless piece of paper. Proper execution involves two major steps. First, the person who is making the will needs to sign it. This is a crucial step, as a will can be written on any piece of paper and only the signature gives it authenticity. This needs to be followed by its attestation by two or more witnesses. Your will shall be considered properly attested only if the witnesses sign it in your presence. However, it is not necessary that both the witnesses sign the will at the same time. Also, the witness should have seen you sign the will or you must at least acknowledge in his presence that you have signed it. The Indian Succession Act does not specify any particular form of attestation. However, in most cases, if the will is not executed properly, it may stand null and void.

2. GIFTING PROPERTY TO ATTESTING WITNESS

If you gift property to an attesting witness in the will, the document will remain valid, but the witness will not be able to inherit the property. For instance, if you want to leave a house to your daughter, she or her husband should not attest as witnesses. If they do so, your daughter will not inherit the house. The property will instead pass on to the residuary legatee. The will may identify the person, who in the event any residue property for any reason whatsoever is left, would receive that property. The person identified in such a case is called the residuary beneficiary, or residuary legatee. If no such person is present, the residuary estate will pass to the testator's natural heirs. Of course, the residuary legatee also cannot be the witness.

3. USING NICKNAMES OR INCOMPLETE NAMES

You may love to refer to your son by his nickname, but do not refer this name in your will. Remember, you will not be there to provide explanations when your will comes into effect. So you must be specific regarding names. Suppose your nephew (your sister's son) is to inherit certain funds. You must clearly state your nephew's name as the son of that particular sister. This will help rule out ambiguity, which may arise if you have another nephew by the same name, or if you have two sisters, both having sons.

If you have written incomplete names, the court will use extrinsic evidence to understand what you may have meant. If you have passed on property to a niece named Rani, and you have two such nieces, the court may either divide the property between the two or will try to understand which one you may have referred to. In case of ambiguity, how your will is interpreted will depend on the court.

4. IMPROPER DESCRIPTION OF PROPERTY

You must clearly describe the property to be bequeathed. Where it is quantifiable, specify it. If you want to give Rs 50,000 in cash to your son, mention this amount clearly. A vague sentence like, "I wish to give cash to ...." may be considered ambiguous and, hence, void.

5. PASSING ON PROPERTY TO UNBORN PEOPLE

Unlike trusts, wills have no place for unborn people. Any property bequeathed to a person yet to be born will be considered invalid. However, this does not mean that the property you leave will necessary lapse. Though the person may not exist when the will is drawn, the validity depends on whether he exists when the will becomes operational.

6. NOT UPDATING YOUR WILL

This is one of the most common mistakes people make. They forget to update a will if they acquire a new property or a new member is added to the family. A will is revocable. In fact, even if you state that your will is irrevocable, it remains revocable. This feature enables you to keep updating it. All you need to do to revoke the will is to physically destroy it or create a fresh one. The old document is automatically revoked. The only time that the earlier will is not considered revoked is if its replacement is deemed invalid.

7. NO PROBATE

Probate is the process of certifying a copy of the will by a competent court. It establishes the legal capacity of the person making the will. In Mumbai, Kolkata and Chennai, it is mandatory to have a probate, though in other places, it is not necessary. In cases of immovable property, a probate is required. Even when it comes to bank accounts or other investments, financial institutions usually insist on a probate. So, it is advisable to have one.

Keep reading!! Stay Blessed!!