Wills in time of COVID 19

The COVID pandemic seems to have brought a change to Indians who otherwise (superstitiously) believe that if they were to make a will – they will die or worse still be killed by the beneficiaries.

In some cases, they choose not to make wills because they don’t want to get into the complexities of bequeathing items to their loved ones, lest one child feels slighted or feels inadequately provided for. They would rather have their children litigate for years through the Indian court system and spend most of what they would inherit rather than be remembered as a parent who left something less for a child.

More interestingly the last few months have thrown up some routine questions (or false information/beliefs) – which I thought are relevant to clarify to those who seek to go down this path of making their wills.

1. Will are not required to be made on stamp paper.

2. It is not mandatory to register a Will.

3. A beneficiary under the will cannot be the witness. The spouse and children of the beneficiary also cannot be a witness.

4. It is more than advisable to appoint an executor to your will.

5. A beneficiary can be the executor to the will.

6. A will needs 2 witnesses. You must choose your witnesses wisely. Remember, a witness may need to make an affidavit supporting the execution of the will at the time of filing the probate. If the will is challenged he/she may have to come and depose in court and be cross examined on how/when he/she saw the testator executing the will.

7. A doctor’s certificate is not mandatory for executing a will. Neither is it necessary to have a doctor as a witness to the will.

Common misconceptions:

1. If I die (intestate i.e. without making a will) my wife/husband will inherit everything. This is standard assumption amongst majority of the people. You must remember based on your religion different personal laws would apply. Most of these do not automatically bequeath your entire property onto your spouse.

• For e.g. If you are a Hindu, your estate would be distributed amongst the Class 1 heirs (there are rules pertaining to how this needs to be distributed, I won’t get into that but be rest assured it does not go 100% to your spouse.)

• If you are a Parsi, your estate would be equally distributed amongst the widow and children, so that the widow and each child receive equal shares; It gets more complicated if you have parents alive or if you have no lineal descendants but only a spouse. Once again I won’t get into that but be rest assured it does not go 100% to your spouse.

1. Nominee- I have made my nominations so I do not need to make a will, or worse still I have made my nominations so it will override my Will or intestate succession. The answer to both statements is an emphatic No. A nominee only hold the property in trust, I use the term property loosely.

2. I am separated but not divorced, my property will devolve on my children/parents but not on my spouse. Once again unfortunately No. While this may ultimately prevail – a considerable part of your estate will be spent in litigation in case your spouse chooses to litigate as a beneficiary. A safer and cheaper option would be to make a Will.

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