If life insurance is necessary for safety and well-being of family members after death of a person, in same manner, his Will is equally important to avoid any property disputes between the family members over distribution of his assets after his death.

In such difficult times of insecurities and chaos, if a person has been advised by any legal counsel or a financial advisor to make a Will- then trust him, it is in his best interest. Recently, we are seeing increasing family and property disputes amongst the close family members of a deceased person over distribution of his assets who died suddenly during COVID-19 pandemic but without leaving a Will or Valid Will.

Writing a will is an analytical component of estate planning. Pandemic is just a reminder of the relevance of a Will. Life is uncertain and we never know when it will come to an end, particularly during any pandemic. Covid-19 Pandemic has caused over 3 lakhs deaths just in India.

A person while preparing a will, can not only choose to leave his estate to the beneficiaries of his choice, but he can also leave legacies (fixed sums of money) or specific gifts or possessions (anything from jewellery to a sentimental book) to a variety of named beneficiaries. A person can also name persons who he wishes to deal with the administration of the estate, the executors, to act in accordance with the terms of his will.

What is a Will
“Will” is a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It is defined under section 2(h) of the Indian Succession Act, 1925. A testator is the person making the Will. Will is a legally enforceable declaration of how a person wants it property and assets to be distributed after death.

Some of the advantages of making a Will
Will is an effective tool to curtail family disputes. A Will makes it much easier for the testator’s family or friends to sort everything out when he dies, and on the contrary, without a Will, the process can be more time consuming and stressful. If a person does not write a will, everything he owns will be shared out in a standard way defined by the law – which is not always the way he might want.

Who can write a Will
Section 59 of the Indian Succession Act, 1925 talks about persons capable of making Wills. The said Section provides – “Every person of sound mind not being a minor may dispose of his property by Will”.

Even though any person of a sound mind can make a Will but there are certain conditions for making a Valid Will:
1. The testator shall sign or shall affix his mark to the Will.
2. The signature or mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
3. The Will shall be attested by two or more witnesses. No beneficiary or legatee should be the witness to a will as it creates doubt with respect to the authenticity of the Will.

Essential elements of a Will
Declaration: A Will should clearly declare the intention of a Testator. It should be clear and unambiguous.

Listing of Assets: The person making/drafting the Will should clearly list all his movable and immovable assets.

Dividing of Assets: Will should clearly state who is to receive which assets. Going item-wise may remove any ambiguity. If the testator wishes to give his assets to a minor, do not forget to appoint a custodian of the assets. It is important to select someone a testator trusts as a custodian.

Will can be revocable by the testator during his lifetime. Although Wills are usually made for disposing property, they can also be made for appointing executors, for creating trusts and for appointing testamentary guardians of minor children.

How to draft a Will
There is no particular format for a Will. It can be typed or handwritten. The most important requirement for a Will is that the intentions of the testator should be clear and unambiguous. A person while drafting the contents of a Will should keep in mind the above-stated essential elements to avoid any sort of confusion after his death. Section 74 of Indian Succession Act states the same in clear terms. Relevant section reads as follows:

“A Will should be written in a manner that is easy to read and understand. As far as possible, the Will should avoid legalese and be worded in simple language. It should be specific and clear with respect to the intentions of the testator.”

Stamp paper is not necessary when writing the Will but writing the Will on a stamp paper will prove the authenticity about the date by which one can identify when the Will was made.

Registration of Will is not necessary but preferred to avoid controversy
The law governing the registration of a Will is Section 18 Indian Registration Act, 1908 which provides that the registration of Will is optional. A will need not be registered compulsorily but if so, desired it may be registered by the testator during his lifetime.

Registration of a Will reduces the chances that the Will may be challenged as being a forgery. Mere non-registration cannot be a reason to doubt the validity or genuineness of a will. However, the doubt as to the validity of a Will would be less significant if it is registered and the sub-registrar certifies that it was read over to the executor who, on doing so, has admitted the contents as well.

The other advantage of registration is that the Will is in safekeeping at the office of the Registrar. Registered Will cannot ordinarily be tampered with, destroyed, mutilated, lost, or stolen.

Though the registration of a Will is not compulsory, it can be registered with the sub-registrar. If, at any time, the testator wishes to withdraw the Will, he can do so. A Will also can be sealed and kept in safe custody.

Landmark Supreme Court Judgment on Will
In Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through LRs. and Others, the Hon’ble Supreme Court referring to Section 63 of the Indian Succession Act had illustrated that to validly execute the Will, the testator would have to sign or affix his mark to it or the same must be signed by some other person in his presence and on his direction. Further, the signature or mark of the testator or signature of the person signing for him must be so placed that it was intended to give effect to the writing as a Will. Section 63 mandates that the Will should be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other person sign it in the presence and on the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person and each of the witnesses has signed the Will in the presence of the testator, though it is not necessary that more than one witness be present at the same time and that no particular form of attestation is necessary. The execution and attestation of the Will are mandatory in nature and any failure and deficiency in adhering to the essential requirements would result in invalidation of the instrument of disposition of the property.

Whether a person can make changes to his last Will
Well, the answer is yes through a Codicil. A codicil is a legal document that dictates any modifications or amendments to a person’s last Will and Testament. If, for any reason, a person feels the need to change some part of his Will which can include adding new arrangements or removing old ones, he can easily do so with a codicil.

In case of a registered Will, all subsequent alterations, or modifications (Codicils) should also be registered. Any non-registered alterations or modifications or explanations or deletions are not accepted by courts.

However, the testator may make a fresh Will revoking the registered Will and declaring the provisions of the fresh Will as his final desires. Even if the fresh Will is unregistered (if it is of a date later than the registered Will), the fresh Will shall prevail over the registered Will.

Living Will
The concept of a Living Will is still new to a country like ours and therefore, considering the current crisis going on in our country, a person should be made aware of the same.

A Living Will is a legal written document that spells out medical treatment a person would and would not want to be used to keep him alive. A person can avoid unnecessary suffering and relieve his care takers of decision-making burden during times of crisis. A person can make a living will and direct his beneficiaries/executor as to what must be done in an event of an accident, medical negligence, disease or any other reason/because he enters into a coma/permanent vegetative state. Living Will can also be construed as directions to the healthcare persons if in any event the above-stated situation arises.

It basically determines healthcare measures that will be taken or avoided when the person is alive but, in a position, where they are unable to take healthcare decisions for themselves or to communicate those decisions; for example, if they are in a coma.

A patient through his living will can choose for Passive Euthanasia if he enters an irreversible coma state and does not want to be on an artificial life support. This is in accordance with the rules and guidelines passed by the Hon’ble Supreme Court of India in a landmark judgment having citation “(2018) 5 Supreme Court Cases 1”.

Importance of Executors
The role of Executors in a Will is very significant. Executors are the trusted persons of the Testator who are given the responsibility of distribution of his assets to the beneficiaries named in the Will. The Executor should be of 18 years of age and of sound mind. It is advisable to name atleast two Executors or appoint a committee or panel of persons who will act as the Executor of a Will. Testator can also name substitute executors in case the original executor denies to fulfil his duties.

The Executor can be given the responsibility of (i) meeting the medical and funeral expenses from the estate left by the testator; (ii) payment of money that is due from the testator or collecting money due to the testator; (iii) taking control and custody of the assets and management thereof till distribution to the named beneficiaries; (iv) obtaining probate of Will, if required, from the court; (v) representing the testator in any legal action (excluding criminal and defamatory matters); and (vi) implementation of the Will by distributing the assets to the named beneficiaries.

The professionals may also be named as executors of Will who will be neutral and fair in discharging their duties as executors of the Will.

Conclusion
COVID OR NO-COVID- There are no good and bad times to prepare a Will. Any person especially when he is the sole earning member of a family, should consider writing a Will. Writing a will is especially important if a person have surviving parents and a spouse who are dependent on him financially, or if he wants to leave something to people outside his immediate family. As per the famous saying – ‘Better late than never’, perhaps it is time for people to write a Valid and Effective Will for the security, safety and protection of their loved ones.