How to write wills that are easier to execute
and minimises chances of disputes
——————- This article was first published in moneycontrol.com on JULY 22, 2022, authored by Mr. Shailendra Dubey, Partner, PlanMyEstate.
To avoid any chances of a dispute, one should as far as possible bequeath a particular asset to the named nominee.
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The entire objective of writing a will is to ensure smooth and dispute-free transmission of our wealth to our loved ones. No one wants to imagine their family getting embroiled in long legal battles and the will getting challenged in court. Hence, utmost care must be taken to write a testament that is unambiguous, minimises chances of disputes and is easy to implement.
Here are some important and practical steps for this.
We Indians love trying out new things in life and when it comes to investing, we are no different. Even before we realise, our portfolios are loaded with multiple properties, demat accounts, bank accounts, mutual funds, bonds, etc. Executing such an over-diversified estate can be a nightmare for the executor of the will and may lead to delays in the distribution of assets to the legatees. Hence, it will be wise to consciously consolidate your estate by liquidating/closing certain non-essential investments and inactive accounts.
While it may be your desire to bequeath all your assets in a certain proportion between your legatees, it may not be practical to implement. For example, bequeathing a car, a painting or a precious gemstone equally between three siblings would create complications in ownership. Similarly, bequeathing the ownership of a house equally between multiple legatees may create challenges in ownership and eventually lead to the property being sold. So, if possible, without compromising on the overall share of each beneficiary in your estate, it might be prudent to consider asset-wise distribution.
Nominees are only the custodians of the proceeds from the account and not the ultimate beneficiary. Since it is possible for a nominee to have access to the deceased’s funds even without a succession certificate or probate order, there could be a possible conflict between the nominee and beneficiary of the will if they are two different individuals. Hence, to avoid any such chances of dispute, as far as possible one should bequeath a particular asset to the named nominee.
Nominees are only the custodians of the proceeds from the account and not the ultimate beneficiary. Since it is possible for a nominee to have access to the deceased’s funds even without a succession certificate or probate order, there could be a possible conflict between the nominee and beneficiary of the will if they are two different individuals. Hence, to avoid any such chances of dispute, as far as possible one should bequeath a particular asset to the named nominee.You may have your differences, your disappointments, your acrimonious relationship with a particular family member but remember, your will is the last interaction with your family. Any unfair treatment here will only make matters worse for the person at the receiving end and deepen the pain for the rest of his/her life. Needless to say, the most logical step for this aggrieved member of your family would be to challenge your will and prolong the distribution process. Unless one has exhausted all options of reconciliation and has hit a point of no return, we strongly recommend that you avoid any unfair distribution or disinheritance in the will.
A valid will requires two witnesses who confirm that the testator has signed the document in his/her presence. Strictly, any beneficiary named in the will should not be a witness to the will. It would be a good idea to have younger witnesses who would most probably outlive the testator and would be available to testify if required. Strong and trustworthy witnesses help in proving the authenticity of the will if it gets challenged. Similarly, in cases where the relationship between the legatees is not cordial and will is likely to be challenged, it is strongly recommended that an independent and competent executor be chosen. Services of professional corporate executor firms can also be considered in such situations.
Many a time, wills are challenged on the ground that the testator was not in a sound state of mind while drafting the deed. Having a doctor’s certificate certifying that the testator is of sound mind, preferably within 24 hours of writing the will, and is competent to write his/her will would be a good tool to counter such claims. Additionally, a video recording of the testator reading and signing his/her will in the presence of witnesses without any duress from anyone would also be helpful in proving the authenticity of the will in court.
To conclude, more often than not, wills are challenged when expectations of certain legatees are not met. So as far as possible, one should be fair and transparent about the distribution of assets in the will. Along with the will, one can also consider writing an “ethical will” through which one can explain and provide the rationale for specific distributions in the testament. A well-drafted will not only provides clarity of bequest to legatees but also helps in avoiding possible disputes and lengthening the process of distribution of assets post-demise.
This article was first published in moneycontrol.com on JULY 22, 2022 / 07:50 AM IST