How and why to draft a Will: a lawyer’s guide for every Indian
We’ve all seen the dramatic scene in so many movies – someone fabulously wealthy has passed away, and the family has gathered in a lawyer’s office to hear the reading of the Will. Some are grieving, and some are there for mercenary reasons. Then, the lawyer solemnly reads the will, and it is full of surprises, some pleasant, some disappointing. Much drama follows.
Scenes like this have primed us to think of Wills as something complicated, esoteric, and possibly something only for the extremely wealthy. In this post, we aim to demystify this idea and clearly explain how you can draw up your Will and avoid court drama.
The first thing to remember is that a Will ensures your loved ones are cared for and your assets are distributed the way you would want. It’s as straightforward as that. Despite this, less than 10% of Indians have written a will, and a report in the Economic Times revealed that Indians have left a staggering Rs. 50,000 crore worth of assets in government custody because of the lack of a Will. Savings, deposits, investments, and so on, meant to benefit you and yours, going into limbo because of the absence of a Will.
A simple legal consultation can help you go about drawing up your Will. This guide will walk you through all the steps, tips, and insights you need to draft a legally valid and effective Will in India.
What is a Will?
A Will is a legal document stating as to how your assets, known as your ‘estate’ – like properties, savings, and valuables – will be distributed after your death. It ensures your wishes and intentions are honoured when you are no more. If you pass away without a Will, or ‘intestate’, it is up to the law to decide how your assets are divided, which may not align with your preferences.
What happens if you pass away without making a will?
If you pass away without a Will, or intestate, your property will be divided according to the relevant laws pertaining to intestate succession in India. These laws vary according to religion, such as the Hindu Succession Act or the Muslim Personal Law, and may not accord with your specific wishes.
For example, imagine a Mr. Chintan who passes away without leaving behind a Will. His children are successful and well-settled and don’t require a huge share of his estate. He has a friend to whom he wishes to leave his art collection, and he wants to leave a substantial amount to his wife. In the absence of a Will, none of these wishes will be considered – the distribution will follow the Hindu Succession Act’s statutory provisions, and his estate will be divided equally among his wife, children, and parents, if they survive him. His wife will not receive the portion he wanted for her, and his friend will not enter the picture at all. Had he made and registered a Will, this situation would not have arisen.
Why do you need a Will?
As you can see, a Will ensures your peace of mind. More than just a legal document, it is a way to ensure your wishes are honoured, your loved ones protected, and your hard-earned assets managed the way you would want when you are gone.
Here are some ways creating a Will helps you:
1. Avoid Family Conflicts
If you’ve seen the serial Succession on HBO, you’ve seen how the lack of clarity around the patriarch Logan’s wishes causes endless conflict and power struggles. A well-crafted Will is an antidote to such drama in real life. By setting clear instructions about who gets what, a Will reduces misinterpretations and misunderstandings, helping avoid conflicts that sometimes tear apart families.
2. Protect your hard-earned wealth
You’ve worked hard to build your assets. A Will ensures they are distributed as you want and prevents them from being misused or falling into the wrong hands. As noted above, without a Will, your property might be divided by succession laws, which may not align with your wishes.
3. Secure the future of your dependents
A will allows you to secure the future of aged parents, minors or other dependent family members. You can appoint guardians for your children to ensure they are cared for until they reach majority or set aside specific funds for your dependents’ education, healthcare, or daily needs.
Some common myths about Wills
Wills are not just for the rich or the elderly. They are for anyone who wants to ensure their wishes are respected and their assets are divided as they want. Let’s bust three common myths that might be preventing you from drafting your Will:
Myth: I don’t have enough assets to make a Will.
Fact: There is no such restriction. No matter the size of your estate, a will ensures clarity and prevents disputes.
Myth: Once written, a Will cannot be changed.
Fact: Absolutely not! A Will is not set in stone. You can change or revoke it any time in your lifetime.
Myth: Making a Will is expensive.
Fact: Writing a Will with expert advice during a legal consultation is actually more affordable than you might think. In the long term, it saves your loved ones from potentially stressful and costly legal battles and issues.
Tip: If you want to see some more common legal myths busted, check out our previous blog post here.
Drafting a Will: A Step-by-Step Guide
Drafting a Will does not require fancy language or complex steps. There is a format to observe, but the structure of a Will is essentially relatively straightforward and meant for your convenience. With the right guidance from a lawyer, you can quite easily draft a Will suited to your needs. At its core, a Will is as simple as this imaginary example:
“I, Farhan Kumar, of sound mind, declare this my last Will. I leave my house in Adarsh Colony to my wife, Jivika Kumar. My bank savings are to be shared equally between my son and my daughter. I appoint my friend, Sunil D’Souza, as the executor of my Will.’
Let’s go through the steps of drafting your Will.
1. List your assets
Begin by taking stock of everything you own. This includes
- Properties (homes, land, apartments, commercial premises)
- Financial accounts (bank savings, fixed deposits, mutual funds)
- Investments (stocks, bonds, real estate investments)
- Vehicles
- Valuable personal belongings (jewellery, artwork, heirlooms)
This will form the foundation of your Will. This list will help ensure you do not miss out on any of your assets and that your Will is complete.
Tip: Be thorough! Missing assets can lead to complications later. Your assets could be anything from mutual funds to jewelry and personal belongings. Don’t overlook smaller items like furniture, collectibles, or sentimental objects.
2. Choose an executor
An executor is the person responsible for ensuring that your wishes are carried out. Choose someone you trust.
An executor can be:
- A trusted family member
- A close friend
- A legal professional or financial advisor.
Broadly, there is no prohibition against appointing an executor who is also a beneficiary of the Will, but make sure you trust this person and there is no possibility of conflict arising.
Tip: Make sure the person you choose is reliable and is aware of this responsibility.
3. Identify your beneficiaries
Decide who gets what, and be specific.
Mention these details to avoid any ambiguity:
- Full names
- Relationship to you
- Contact details
This will help ensure a smooth transfer of assets to your beneficiaries.
Tip: If you want to leave assets to charities or organisations, ensure they are legally registered to receive them. To clarify, confirm with your lawyer during a legal consultation.
4. Draft the Will
Remember, your Will does not have to be elaborate – it just has to be thorough. Write down:
- How your assets will be distributed
- The names and details of your beneficiaries
- Your executor’s information
Tip: Use simple, clear language and avoid vague terms. If getting the wording right is daunting, don’t worry – your lawyer will guide you through the steps and make it seamless.
5. Sign and witness the Will
You must sign your will in the presence of at least two witnesses. To avoid conflicts of interest, these witnesses cannot be beneficiaries of the Will.
Tip: Any impartial person without an interest in the will can be a witness. Make sure to ensure someone who can easily be called upon if required. Don’t worry – your lawyer will help ensure your selections are suitable.
Key Legal Requirements
To make sure your Will is legal and binding under Indian law, here are some essential requirements to bear in mind:
- You must be an adult of sound mind
When you draft a Will, you must be at least 18 years of age and of sound mind. It is much like getting a driver’s license or voting – Indian law recognises your maturity at this age. You must also be of sound mind, which means you should be capable of understanding the implications of what you are writing. If you are feeling stressed or confused, it’s best to wait until you are mentally prepared for this important step. - No room for coercion or pressure
Again, we’ve all seen those dramatic courtroom scenes where someone declares, ‘That’s not what he really wanted! He was forced!’ To avoid such situations, there should be no external pressure on what you decide in your Will. No one, whether a family member, friend, or associate, has the right to tell you what your Will should decide. - Two witnesses are a must
To reiterate, those two witnesses are essential. They can be any two adults of sound mind whom you trust. They don’t have to be family members. - The Will must be in writing
It can be handwritten, typed, or printed. - As the testator, you must sign at the end of the Will. If, for any reason, you are unable to sign, you can direct another person to sign the Will in the presence of two witnesses. Again, a legal consultation can help you work out these details.
Tip: Make sure your Will is clearly dated! If multiple Wills exist, the most recent Will revokes all previous Wills unless stated otherwise.
Registering Your Will
Registering a Will is not mandatory, but it’s a smart move. It adds an extra layer of authenticity and helps prevent disputes later on. If your copy of your Will gets lost, damaged, or is tampered with at some point, having your Will registered ensures that your original, authentic Will is not lost.
Here’s how a Will is registered:
- Visit your local sub-registrar’s office
- Carry your original Will, proof of identity, and any other documents your lawyer specifies to avoid any last-minute confusion
- Make sure two witnesses are available at the time of registration
- Be aware of and have the nominal registration fee ready
Your lawyer can help you prepare for this process, know where your relevant sub-registrar’s office is, and so on.
What a Will looks like: A closer look
Ever wondered what a Will looks like? We’ve outlined the basic requisites of a will above, but you might be curious about the details. Here’s a sample draft to familiarise you with the document and what it reads like. You can customise everything according to your personal needs and desires.
Sample will:
I, [Mr.X], aged [54] years, Hindu, Indian Inhabitant, residing at [address], do hereby of my own free will and accord, in sound state of body and mind and possession of my full senses, voluntarily without any force, duress, inducement or fraud and according to my intention and desire, do make and execute this, my Will, revoking all my former wills, codicils and any other documents of a testamentary nature, hereto before made by me and declare this to be my last Will and Testament and state that this Will shall come into force immediately on the date of my death.
- I hereby appoint (i) [Mrs.Y] and (ii) [Mr.Y.], jointly and severally to be the Executors of my Will, who shall on my death collect in and receive all my estate and effects and administer the same as per the provisions of this Will.
- In the event, any of my Executors predeceases me then the surviving Executor/s shall continue to be the Executor of my Will.
- I direct the Executors to pay off all my debts, if any, and to pay all necessary and essential expenses incurred or to be incurred on my death, including costs for the customary ceremonial performances, and pay all testamentary expenses out of my assets and then distribute all my assets/properties, movable and immovable, as stated below.
- I further direct the Executors to call in and, if necessary, to take the appropriate steps to collect all amounts that may be payable to me at the time of my death.
- I hereby give, demise, and bequeath all my right, title and/or interest in the [property] to my [son/daughter] absolutely. In the unfortunate event, my [son] predeceases me then the bequest made hereto shall go to my [daughter] absolutely.
- I hereby give, devise and bequeath the following sums of money to be paid out of my bank accounts (forming part of the said Movables) to my [son/daughter], for their respective absolute uses, benefits and purposes.
The points above provide an example of what to expect before approaching a professional for a legal consultation.
FAQs
How AKS Law Associates Can Help
Drafting a will doesn’t have to be overwhelming. At AKS Law Associates, we’re here to simplify the law for you. Whether it’s drafting a will, resolving disputes, or navigating complex legal matters, our experienced team is committed to providing clear guidance and tailored solutions.
At AKS, our lawyers specialise in making estate planning easy and seamless.
Here’s what we offer:
- Personalised legal advice tailored to your needs.
- Assistance in creating, reviewing, and registering your will.
- Expertise in resolving estate disputes and navigating complex legalities.
Tasha Tyagi
Principal Associate, Corporate & Real Estate
With expertise in Corporate Law, Real Estate Law, Commercial Contracts, and Mergers and Acquisitions, Tasha brings a strategic edge to every case she handles. When she’s not advocating for her clients, Tasha can be found experimenting with new recipes inspired by her favourite pastry chefs or immersing herself in the works of Virginia Woolf, Sylvia Plath, or Machiavelli.
Creating a will is about taking control of your future and safeguarding your family’s well-being. The process is simpler than you think, and the peace of mind it brings is priceless.
Don’t wait. Start listing your assets today, and take the first step toward creating a will that reflects your wishes.
Reach out to us today for reliable, professional legal support.
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