Technically, making a will should be a simple, affordable, hassle-free, and safe against litigation to distribute a person’s assets and property among legal heirs after her/ his lifetime. As per Indian law, a will, irrespective of whether it’s handwritten or typewritten, on a plain paper in a clear language and witnessed by at least two persons, is legally valid. Registering a will by visiting a court of law or getting a notary to attest it, is simply optional, not mandatory.

Creating a will should be a straightforward activity, not rocket science. Yet, many will makers make silly mistakes while writing a will. With a bit of counsel, they could have easily avoided these follies. The biggest folly is not caring about drafting your own will, at all.

Mistakes Impact
“We are three children, and our parents haven’t left behind a will.” A will mentions how a person’s wealth and property should be distributed after her/ his lifetime, to whom, and in what proportion.
If someone hasn’t made a will in her/ his lifetime, the assets and property will be distributed as per the succession laws, applicable to their religion. This means the legal heirs may not inherit the estates, according to the wishes of the deceased.
In such cases, legal heirs must spend at least a few lacs as legal costs to obtain the succession certificate, required to inherit the wealth and assets. This can take about 6-12 months.
The deceased might have made nominations; but contrary to popular belief, a nominee is not a legal heir. She/ he is simply a trustee of the wealth, who can collect the wealth on behalf of the legal heirs, and act as the custodian of the wealth.
“Will is incomplete and not properly signed/ witnessed.” Not just the signature, all details appearing in the will should be complete, clear, non-contradictory and valid, else there is a chance of someone challenging the will in a court of law due to vagueness.
A will maker should ensure that the will covers all movable and immovable assets , as it’s easy to miss out one or two! The person who is making a will must sign in the presence of at least two witnesses.
“It was my uncle who assisted my late mom to write the will. The language was vague, at least in some places.” A badly drafted or ambiguously phrased will, is as bad as – not having a will at all. It can be easily challenged in the court by any of the heirs, with the assistance of a legal professional.
A vaguely written will opens itself to debate, since it may not clearly spell out what estate of the deceased is to be passed on, to whom and in what proportion.
“I wrote a will eight years ago. I am done with my will. Now it’s up to my heirs.” Does the will reflect the present status of ALL your assets, your wishes and your family members as of the present day? If ‘Yes,’ then the will you made still holds good. If ‘No,’ then you need to update the will.
Do remember that, a person can make a new will as often as she/ he wants. Alternatively, she/ he can make a Codicil, which is supplementary to an existing will. Every new will must include the following statement, without fail: ‘This is the last will, and all past wills, if any, are to be treated as cancelled.’ Because, legally, the last will and testament supersedes every other will previously made.
Experts strongly recommend updating a will every 2-3 years, in order to ensure changes are reflected and the will remains current and relevant.
“My late dad appointed his youngest brother as the Executor of his will. Later on, he claimed a share of the property.” Avoid an executor who might possibly have, or claim, an interest later in the proceeds, from the terms of the will. Pick someone who is reliable to execute your assets as per will, without any self-interest.
It is prudent to choose an executor who is young and more likely to survive the will maker. (Both these caveats apply to witnesses as well.)
There is also an option to appoint a third-party executor like professional firm/company, who is independent and unrelated to the wealth owner or her/ his heirs, and execution is done professionally as per fixed fees.
“My elder brother and spouse left a will in favour of their minor children. They didn’t care to appoint a Guardian for the minor children.” Where the legal heirs are below the age of majority, the will should appoint a Guardian who will act as a caretaker (only) of the estate, until the children turn major (i.e. 18 years of age).
Appointing one parent, or close relative, or grandparent as a Guardian, is a common decision.
Sometimes, a will maker misses this important step. And as a result, the court comes into the picture to safeguard the interests of the minor.
“I gifted away most of my property to my children, thinking that I wouldn’t live to a ripe old age. Now, I am 80, almost penniless, and surviving on a pittance from some relatives.” Unlike a will, which is revocable any time during the lifetime of the owner, a gift of assets or money made to another person is irrevocable. A will maker remains the owner of her/ his assets throughout her/ his lifetime, even if these have been willed to a legal heir. This is an obvious advantage that a will has, over a gift.
“My mom failed to donate her organs, since this wasn’t a part of the will. Looking back, I feel some person in the waiting list for organ transplant might have benefited.” Very true! The reason for this, is many will makers are not conversant with assets other than movable and immovable assets that can be brought under the ambit of a will, for example, digital assets or organs.
Some movable assets that can be included in a will are paintings, antiques, books, social media accounts, intellectual properties, online drives, and pets.
Did you know that now a Living Will is a legal way to write a will for decisions which doctors should take, during your medical illness?