Beyond Legal Advice - Managing a Defective Will

Dec 29, 2022

Wills are important.

We all know this fact, yet most of us don’t write them and even if we do write a Will, we rarely make any effort to ensure that it’s not defective.

The Importance of Non-Defective Wills

Wills are important because they ensure that you select the right people who will get your assets and benefit your loved ones in the best manner.

Writing a Will is the first step in ensuring that our loved ones are taken care of, but it’s not the last step. You need to get your Will checked (after writing it) by a lawyer or even get it written by a lawyer because…

A Will has to be perfect in every detail— there should no major typos, no wrong information e.g. the names of the beneficiaries should have no spelling mistakes, signatures should match— in short, it has to be completely error-free.

If there is some major error in the Will, then it becomes a defective Will. A defective Will can be challenged in Court and is difficult to execute especially if the beneficiaries want to sell the assets mentioned in the Will.

Thus, a small error of not getting a Will thoroughly checked can turn into a big threat for your heirs. They will now need to go through lengthy court processes to claim what is otherwise rightfully theirs and the process might get longer if someone challenges the Will.

What happens When you Leave a Defective Will?

The problem is that if a Will is defective, then it can be implemented only in parts or become fully null and void. All that depends on the nature of the defect, e.g. if one of the bequests is such that it cannot be implemented due to the defect in the Will, then such a bequest will be void but the rest will be implemented.

Let us show you what happened when Meena (name changed) came to us with her father’s defective Will.

Mr Narendra Rathod had written what he felt was a valid Will. He had two daughters Meena and Asha. Meena had two children and Asha had three. The siblings had a good relationship and trusted each other. After Mr Rathod died (Mrs Rathod had expired earlier), they realised their father, despite his best intentions, had written a defective Will.

The defects in the Will were as follows:

  • The birth dates of his grandchildren (who were the main beneficiaries in the Will) were wrong
  • the executor was not named.

Mr Rathod had wanted his estate to be shared equally among his grandchildren. Meena and Asha were firm in their decision to ensure that their father’s wish was carried through despite a defective Will.

Their trust in each other and desire to follow the spirit of their father’s Will gave us the necessary go-ahead to explore a more time-effective solution.

In such cases, sometimes it is advisable to set aside the Will because it could lead to problems later in executing the defective Will and distributing the assets. Thus in this case we suggested that make use of the “intestate” route. In this route, you set aside the defective Will and go to the courts to appoint an administrator of the assets. This is a little circuitous route but it often helps in achieving the objectives of the spirit of the Will.

In Meena and Asha’s case, the issue was slightly complicated as their father wanted to divide his estate equally among his grandchildren. If they did not trust each other and went to court against one another, then the court would divide the estate equally among the two of them. As one sister had two children and the other had three, the division between the grandchildren would not be equal. This would be contrary to the wishes of Mr Rathod. Thus, it was to the benefit of all that the sisters were in agreement, and no one wanted to challenge the Will, rather they wanted to do all they could to ensure that the spirit of the Will was maintained.

Mr Rathod’s estate included a house, mutual funds (in Mr Rathod’s and his deceased wife’s names), a savings account and a locker.

The Process

The sisters decided to trust our experts and thus we could work through complicated tax and finance issues in a structured way.

The siblings mutually decided that one of them (Meena) would become the administrator of the estate. Meena then filed the requisite documents in court to apply for a Letter of Administration (LoA).

The mutual funds had no nominee name, so the following process was undertaken:

    • Mutual funds above Rs 2 lakhs and the Demat portfolio were transferred to Meena
    • Formalities for the transfer of mutual funds of less than Rs 2 lakhs were completed. These were transferred directly to Meena as per the prescribed procedure for such small holdings
    • Extensive paperwork and notarisations required in all the stages were handled by our team

Alongside these activities, we also helped in obtaining and distributing the following assets:

    • Mr Rathod’s flat got released to Meena through a release deed (we did not need to wait for LoA. This again saved time)
    • Helped the daughters in convincing the bank holding their father’s locker to distribute the contents to the daughters without waiting for the LoA. The cash in the locker was used by them to meet the expenses of the legal process
    • We also assisted in all the formalities and paperwork for physical shares of Reliance in their deceased mother’s name. These shares were demated and transferred to the administrator (Meena)
    • The assets which were finally transferred to the daughters were redistributed in the ratio mentioned in the Will
    • We also helped in ensuring FEMA compliances for the remittance of one of the grandchildren in the USA
    • Aided in filing closure report with the High Court once the administrator had completed the distribution.

A defective Will can play havoc with the lives of your loved ones especially if they are not on cordial terms with one another. The court always offers some solutions but court proceedings take additional time, money and effort.

Getting your Will validated by a lawyer is thus an essential step to ensure your loved one’s peace of mind.