Last Will and Testament: Dos and Don’ts

Making a Will is a daunting task that discourages the testator to delay their Estate Planning. This blog will definitely help you to focus on the dos and don’ts in making a Last Will and Testament.

What is a Last will and testament?

A Last Will and Testament (Will) is the most commonly used document that provides the manner in which a person’s property or assets will be distributed after death. The person creating the will is called the testator or grantor and the person receiving under the will is called the beneficiary.

All States may have different requirements for a will to be valid but generally, a will is valid if is executed by the person with the testamentary capacity in writing and signed by two witnesses in the presence of the testator or at the testator’s direction.

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What is a testamentary capacity?

A testator is deemed to be competent if he or she is at least 18 years old and of sound mind. Competency is measured at the time when the testator signs the will.

The subsequent incompetence cannot invalidate a will, usually, the soundness of mind is present when the testator understands or can know the nature of the property to be transferred under the will, the nature of the persons who will receive under the will, and the plan of the attempted disposition.

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Dos for a Last Will and Testament

  1. Make a will
    It is very important to prepare a last will and testament that ensures your all assets and properties are distributed and disposed of as per your desires and will help to avoid conflict among the members after your demise. It gives you the choice to allocate greater wealth to the person you love the most and disinherit the person you don’t want him/her to be the part of your will.

    If there is no will, then all your assets and property are divided as per succession laws applicable to you based on your religion. This will lead to the distribution of assets in a fixed proportion mentioned in succession laws which may not necessarily be as per your wishes.
  2. Will should be written
    A will can be both written or oral, but it should be advised that it be written and can cover a precise detail of you, your family, your property and assets, beneficiaries, two witnesses, date, time, place, signatures, etc.

    An oral will can be made in special circumstances which are allowed only to soldiers, airmen, and navy persons while they are involved in combat or on high seas and risking their lives. Muslims are also allowed to make an oral will as per their personal laws.
  3. There should be witnesses of a will
    As per the legal requirement, a will should be signed in the presence of minimum of two witnesses. The witnesses don’t need to read the contents of the will; however, they just confirm that it was signed in their presence.

    If the question of legality or authenticity of the will arises, the witnesses can be called by courts for accountability.
  4. Include joint properties in a Will
    A testator owning any joint property is allowed to mention his wishes in the will only upto his share in that joint property. It is necessary to mention about all joint property titles to avoid unnecessary disputes in the future.
  5. Choose an alternate executor
    One should name an alternative executor in a will who will act as an executor if a chosen representative is unable to fulfill the roles. No matter how certain you are that your named executor will be willing to act as an executor after your death, but things change over time and life is uncertain, and there might be a possibility that a named executor is unable to accomplish things for which he was responsible.

    For example: The executor may die at the same time or shortly after your death, develop an illness that makes it challenging for them to take on all of the responsibilities of an executor, became mentally incapable, etc.
  6. Do express you wishes clearly
    Express your wishes in clear, unambiguous, and precise words so that there will no room for any misrepresentations. This will not create any confusion or questions in the minds of beneficiaries and will help the executor to execute the will without any huddles.

    You can create your will using eSahayak where you answer all the questions and eSahayak creates your will in real time.
  7. Update your Medical Contact Information
    It is beneficial to update your medical contact information at least every five years, or when the circumstances or law changes. Also, mention your medical or religious beliefs which might impact your treatment philosophies.
  8. Registration of a Will
    Well, it is not mandatory to notarise or register your will. However, a will can be registered anytime after execution, without any fee at the sub-registrar’s office (except for some scanning charges).

    The importance of the registration of a will is that the person who has made their will in the presence of two witnesses would have visited the registration office physically and registered the will at the sub-registrar’s office. Hence, the authenticity of the will can be validated.

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Don’ts for a Last Will and Testament

  1. Not wait until old age to make a will
    Time is uncertain and ideally, a person can make a will anytime after attaining 18 years of age or at least when he/she starts earning. Just like people take an insurance policy at 25 years of age to provide for their family as one cannot anticipate the future.

    Similarly, a will can be created anytime when you feel it is the right time to distribute your property or insurance claims.
  2. Don’t forget about the Pets
    Since pets are considered property under the law, they’re a part of your estate just like any other property you own. Hence, while making a will, you should choose a pet guardian for your pets. That person will be responsible for providing food, shelter, vet care, and companionship after your demise.

    You can even leave money in your will for the pets so that the pet guardian can utilize it in the best manner towards taking care of your pet.
  3. Never write changes in your existing will
    A testator should never write changes on an existing last will and testament. It is true that circumstances changes, someone might come in and your existing executor might become incapable of the responsibilities and now, you want a third person to your executor. So, you will cross through the provision that says I don’t want Pooja to be my executive and then write maybe in pencil or pen that Prateek is the executor. It will always be advisable that such changes should not be written on a will.

    Try to make a new will whenever any major changes occur like life, death, marriages, divorce, etc. Review your documents annually and keep your will up-to-date.
  4. Never bequeath all your property to a single beneficiary
    A beneficiary is a person to whom the properties or assets are distributed under the Will and that can be any person, body, trust, charitable institute, society, etc. A testator can bequeath all his/her property to a single beneficiary; however, it is favorable to have multiple beneficiaries so that all your close and loved ones can be included and don’t feel neglected.

    For example, you could assign 50 percent of your estate to your spouse and the rest 50 percent of your estate to your child.
  5. Don’t create alternate copies of your will
    It will be thoughtless of you to create quirky and alternative versions of your original will. Such a version will be invalid and not legally binding. That will also create confusion in finding out the original and authentic will.

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Other Important points to be kept in Mind for Last Will and Testament

  • A person having a tenancy right in property need not be bequeathed in a Will because tenancy rights are not property or assets. However, a leasehold right can be bequeathed in a Will.
  • Ancestral properties in which the title/ownership is legally transferred to the testator are allowed to be mentioned in a Will.
  • If a person having ownership or proprietorship in a company or partnership firm, then such ownership can be bequeathed by a Will subject to the conditions, if any, in the partnership deed.
  • A share in the Hindu Undivided Family cannot be bequeathed in a Will.
  • The properties or assets where nominations are filled need to be included in a will because the nomination is just a facility to claim property by a nominee in the event of the death of the owner. Such nominee will act only as a Trustee for a temporary period till the legal heir is established as per the Will or as per the Succession Act.
  • The legal heirs are not required to pay income tax and other taxes in respect to properties under the Will because property received under the Will does not attract any tax including capital gains tax.

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