Your Willpower Can Help Leave Legacy, Not Mess

Several celebrities and their families — Sridevi, Rajesh Khanna, Sivaji Ganesan, to name a few —have fought legal battles over legacy, trust and inheritance. Legends Bob Marley and Jimi Hendrix died without making a Will. While Pablo Picasso, Marlon Brando, and Robin Williams' families have been doing court rounds for years to sort out their convoluted Wills to inherit the assets.

Yours Will-ingly

“A Will is more than just a legal document,” says Advocate Kritika Oberoi, Delhi High Court & District Courts. Adv. Kritika opines that a Will serves as the simplest form of estate planning. “A Will serves as a vital tool that ensures that your wishes are honoured and your loved ones are provided for after you’re gone,” she explains.

At its core, a Will is a legal document where a person (called the testator) specifies and lists his/ her assets (properties, bank account details, fixed deposits, jewellery, cars, etc, the list goes on). The Will determines how the assets (movable + immovable) are distributed after the testator’s death.

Famous Family Feuds

Where there’s a Will, there’s an heir! There have been several high-profile family feuds in India over inheritance and Wills. The most famous being the Hinduja family dispute ($14 billion) on the 2014 “Everything Be-longs To Everyone” letter signed by the four brothers, which has been challenged by the late SP Hinduja's daughters, Vinoo and Shanu. The Kalyani family feud (Rs 70,000 crore),

in which Bharat Forge Chairman Baba Kalyani and his brother Gaurishankar Kalyani are embroiled in a legal mess over their late mother Sulochana Kalyani’s Will.

Advocate Likitha Avare, Corporate Lawyer & Legal Adviser, explains, “A Will is one of the most crucial instruments that ensures the smooth succession of a person’s assets.” She advises every person to make a Will, irrespective of how little they have in their kitties.

Registered vs. Non-Registered

Many people wonder whether a simple handwritten and signed Will is enough or if it is mandatory to register a Will. Advocate Avare says there is limited awareness about the importance of a Will in India. Many people wrongly assume that Wills are reserved for the elderly, terminally-ill patients and wealthy folks. The reality, however, is far more universal.

Advocate Avare explains that property in India is passed on through two types of succession — intestate and testamentary. She explains, “In intestate succession, a person dies without making a Will. So the property then is distributed as per his or her personal laws.” In other words, when there’s no Will, the law steps in with its own rulebook (personal laws). Here, the outcome that follows may not be something the deceased might have really intended.

But in testamentary succession, things change. When a valid Will is in place and duly registered, the distribution of assets follows the testator's wishes. Not having a Will can open the door to a host of legal complications. First, the legal heirs may need to apply for a legal heir certificate - a process that could stretch for years. And second, if there are disagreements or rival claims, succession disputes can arise, dragging families into long, emotionally and financially draining legal battles. Enter the question of registration: Is it necessary? Advocate Kritika weighs in with clarity, “A Will does not have to be registered or notarised to be legally valid. A simple Will signed by the testator and two witnesses is sufficient in many jurisdictions.”

However, she offers an important perspective. She says, “Registering a Will adds layers of authenticity and makes it more difficult to be challenged in court.” In other words, while a Will doesn’t need to wear a legal badge to be valid, having it registered gives it extra armour, particularly when the threat of disputes looms in the air.

Adv. Kritika points out that registering a Will doesn’t make it immune to legal challenges. “It just makes the challenging part get tough.”

Will & Grace

The risk with a Will made but left unregistered is simple but serious. Adv. Kritika says, “If a Will isn’t registered but only made, there could be instances where the Will is simply not found or located.” This happens when a person who has made a Will hasn’t informed anyone about it. In the absence of registration, a Will could be more prone to being lost, destroyed or even deliberately hidden. Adv. Kritika adds, “By registering your Will, you can ensure that your wishes are followed and that it is legally recognised and enforceable.”

Making a Will at the right time and phase is imperative. In India, almost anyone of sound mind and legal age can make a Will, provided that the property passed on isn’t already sold to another.

A few things that help include that the document made (whether registered or not) must be a free and conscious expression of the testator’s wishes (no force, fraud or coercion).

There is no fixed age to make a Will; one should just be above 18 years of age. “Any person with significant assets, financial responsibilities or dependents needs to have a Will in place,” says Adv. Likitha. A Will can also be revoked at any time. In the end, Will is more than just dividing property. It’s a powerful act of love and responsibility. It ensures that your wishes are honoured, your loved ones are protected, and your legacy lives on exactly as you intended long after you are gone!

A Registered Will

Do’s

• Draft a clear and simple Will: Avoid ambiguity

• Include all necessary information: For instance, name, address, and details of beneficiaries.

• Ensure you are of sound mind at the time of making the Will.

• Sign the Will in front of two witnesses

• Register the Will: Visit the sub-registrar’s office with your signed Will and the witnesses to get it officially recorded.

Dont’s

• Don’t use vague language.

• Don’t rely solely on a non-registered Will: While not legally required, registration significantly enhances the credibility of a will.

• Don’t assume registration is the final step: Registration adds a layer of authenticity, but it can yet be challenged on valid grounds (unsound mind, person not being of legal age, use of fraud, coercion etc)

(Courtesy: Adv Kritika Oberoi)