Drafting a will? Here’s how to ensure your assets reach your loved ones smoothly

Investment banker Sarthak Ahuja recently highlighted that many people overlook critical details while drafting their Wills for spouses and children, leading to complications in inheritance. A Will is a legal document allowing an individual, the testator, to specify how their assets and property should be distributed after death. Ahuja shared insights on common mistakes that can result in disputes and delays for beneficiaries in a LinkedIn post.

“Among the most common disputes in Indian courts are property ownership matters because people keep contesting Wills, saying the Will is not correct... and the rightful owners don’t get their share in the property,” said Ahuja, emphasizing the need for clear, well-drafted Wills. He noted that while registering a Will at a court is ideal, an unregistered Will can still be valid if certain precautions are followed.

Ahuja’s key recommendations include:

Handwritten over typed if unregistered – Handwriting demonstrates authenticity.

Title the document clearly – At the top, write “Last and Final Will.”

Number pages correctly – Use formats like “1 of 10” rather than simple numbers.

Avoid overwriting or slashes – Any correction should result in rewriting the Will entirely.

Provide detailed beneficiary information – Include full names, Aadhaar and PAN numbers, and percentage ownership of assets rather than absolute values.

Witnesses – Include two unrelated adults, ideally a lawyer or CA and a doctor, to certify mental fitness.

Executor – Choose an impartial executor unrelated to beneficiaries.

Legal heirs as witnesses – Helps prevent future conflicts.

Seal the Will – Mark the envelope with instructions for opening after the testator’s demise.

Detailed asset descriptions – For jewelry and valuables, provide shape, color, size, weight, and photographs.

Legal advice

Tahira Karanjawala, Partner at Karanjawala & Co. Advocates, adds a legal perspective: “One of the most frequent and avoidable errors is ambiguity. A Will should clearly set out the testator’s intention regarding property disposal. Ambiguity can make the Will vulnerable to challenges from excluded relatives.”

Legal formalities are critical. Under Section 63 of the Indian Succession Act, 1925, the Will must be signed by the testator, attested by at least two witnesses who have seen the signature, and signed in the presence of the testator. Courts also assess whether the Will was made voluntarily, without coercion, and free from suspicious circumstances. Unnatural dispositions, such as excluding a spouse or children, require clear reasoning to avoid disputes. Mental soundness at the time of signing is also crucial; the Will may be challenged if the testator suffered from illness, intoxication, or dementia.

Regarding format, a Will can be typed or handwritten. Handwritten Wills, or holographs, are often given slightly more credibility due to difficulty in forgery, but they still require signature and witness attestation. Registration under the Indian Registration Act, 1908, is optional but increases evidentiary value.

Asset identification is vital. For immovable property, include postal addresses, property type, and legal identifiers like survey numbers. Financial assets should list account numbers, institution names, and branch details. Movable assets like jewelry, art, or heirlooms require precise description of appearance, weight, stones, and unique marks. Photographs or a detailed inventory schedule, dated and signed, can further reduce disputes.

Witnesses must be adults of sound mind and unrelated to the Will. Executors, while not legally required, play a vital role in implementing the Will. Duties include locating the Will, applying for probate, gathering assets, paying debts and taxes, and distributing assets according to instructions. Executors should be trustworthy, impartial, and preferably younger than the testator. Professional entities can be appointed for complex estates.

Additional precautions include:

Dating the Will – Clearly mention the creation and signing date.

Numbering and signing pages – Every page should be numbered consecutively (e.g., “1 of 10”) and signed by the testator and witnesses.

Avoid alterations – Clean document with no corrections or unexplained blank spaces; if unavoidable, authenticate corrections with signatures.

Revocation clause – Begin with a statement revoking previous Wills and codicils to avoid conflicts.

Drafting a comprehensive, unambiguous, and legally compliant Will ensures that assets are distributed as intended and minimizes the risk of disputes, securing peace of mind for the testator and their beneficiaries.