rediff.com
rediff.com
Personal Finance Find/Feedback/Site Index
      HOME | MONEY | PERSONAL FINANCE | PERSONAL AFFAIRS
April 19, 2000

 - Banking
 - Cards
 - General
 - Insurance
 - Lifestyle
 - Loans
 - NRI
 - Real Estate
 - Taxation
 - Travel

E-Mail this report to a friend

Thy will be done

Larissa Fernand

So you want to draw up your will? Here are 10 steps to get you by. But, before you go through them, here are a few legal terms you should familiarise yourself with.

Testator: Person writing the will.

Codicil: A minor change in the will.

Intestate: When an individual passes away without drawing up his will.

Beneficiaries: Individuals mentioned in the will as inheritors.

Living will: A document stating specific instructions as guidance to the family regarding the withdrawal and withholding of medical care, such as the use or removal of life-sustaining procedures, in the event of terminal illness or injury.

It delegates to your family the right to make healthcare decisions, regarding the type of care and degree of medical intervention you would want in the event of a life-threatening medical condition, when you are not in a condition to decide yourself.


The actual drafting of the will.

  • To get started, write down a list of all the people you would like to name as beneficiaries and all the people you choose to disinherit, along with a list of all your assets and liabilities.
    You don't need a lawyer to draw up your will, but he could help in framing it so that no terms are used which can be misunderstood, or he could assist you in case of a possible slip-up.
  • There is no need to get hold of a stamp paper. A will can be written on any piece of paper. Incidentally, in Alaska even a hand-written will on the back of a grocery slip is regarded as legal. Back to India. Written does not mean that you should do so in your own handwriting. In fact, you should not. Any word that is not decipherable is open to misinterpretation and can be contested later. Get it typed.
    Moreover, it is safer to draw it in a language familiar to the testator. For example, if the testator never knew English but has the will drafted in that language, then it can be contested on the basis that the testator had no idea what he/she was signing.
  • Oral wills are permitted only in three cases: member of the armed forces in action, a mariner at sea whose ship is going under, and a Muslim. But two witnesses are a must (assuming that they too won't be killed in action or go under).
  • Why you need two witnesses. The reason being the will can be contested later on the basis that force was involved in the signing of the will and the person was of unsound mind when doing so. Or even that the signatures were forged. But of course, this is not easy to prove in the court of law since substantial evidence would be needed to back such a claim.
    Hence, the two witnesses who can vouch for your sound mind and no force being involved in the signing of the will.
  • The witnesses are not needed while drafting it, but only at the time of signing it. Make them sign not only on the original but on the copies as well and each should state his name, address and occupation when signing. And how should you select the witnesses? Anybody of sound mind and body will do.
    Ensure that they are not beneficiaries or minors to avoid complications in the future. Also, make sure that they are not suffering from any terminal illness.
  • Include all details in the will. For example, if you mention your child as the owner of your home but you expect your spouse to reside there till his/her death, then a mention must be made in the will to this effect. If you are leaving all your money to charity and nothing for your family, then emphasise the reason for doing so.
    Disinheriting a close family member? State your reason. Sure, it is your money and your choice, but that person may contest the will on the basis that you had a temporary memory lapse. Specifically mentioning his name and the reason for eliminating him will avoid any future problems.
  • There is no need to register the will. If you do so, making changes is a tedious procedure since you will have to inform the sub-registry about changes to be made. To ensure the will's validity, keep the original with your lawyer, a copy with you and one with each executor. Make sure that the witnesses sign each and all four are sealed.
  • That brings us to the appointing of two executors. This is not necessary, but quite convenient since it ensures that the contents of the will are implemented. It is better not to make a beneficiary and certainly not a minor an executor. But do take their prior permission before you name them.
  • The will maybe the final document on your death, but it certainly is not while you are alive. You can keep changing it and reviewing it.
    In fact, it makes sense to renew it every so often if your investments keep changing, have depleted or you have come across a windfall. Then again, you may get married or divorced. One of the beneficiaries may have passed away. Or there may be a birth and you would like to make an addition.
    If it is a minor change, it is referred to as a codicil. When writing the change, you have to state why you are making it. Here again, two witnesses are mandatory. However, they need not be the original two. A lot of changes would entail a new will being drawn up. Though the last one is the final one, it makes sense to destroy the previous ones.
  • The will supercedes all other previous documents. In case, you named various family members as nominees for various investments, they don't automatically own them on your death. They become the rightful owners only if they have been mentioned in the will.
    What's more, if you name someone else in the will, he supercedes the nominee. Also, if you have given someone the power of attorney, then it stands revoked at the time of death. So make sure that the new owners are named in your will.
  • And, what happens if you fail to draw up a will? Then the religious law will take over. A Parsee who dies intestate, for example, will result in his wife, parents and children sharing his estate. Not equally though. The father and daughter get half of what the wife and son get. In the case of a Hindu, equal division is made between the wife, children and mother.

On a closing note, there are instances, where the law will hold supreme over and above your will.
The laws in France and Japan, for instance, make it mandatory for certain relatives to receive a part of the possessions of the deceased.
In India, under the Muslim law, a person can only pass a third of his possessions. The balance has to be distributed in accordance with the law.
The Hindu Adoption and Maintenance Act entitles all dependents (parents, minor children, unmarried daughters) to maintenance even if they are disinherited.
In Goa, the principle of community ownership of property still holds which was formulated under the Portuguese law. The surviving spouse gets 50 per cent of the estate and the children get an equal share each of the balance 50 per cent.

Tell us what you think of this information

HOME | NEWS | BUSINESS | MONEY | SPORTS | MOVIES | CHAT | INFOTECH | TRAVEL
ROMANCE | NEWSLINKS | BOOK SHOP | MUSIC SHOP | GIFT SHOP | HOTEL BOOKINGS
AIR/RAIL | WEATHER | MILLENNIUM | BROADBAND | E-CARDS | EDUCATION
HOMEPAGES | FREE EMAIL | CONTESTS | FEEDBACK

Disclaimer