The common reason for a will to be contested in court is when an heir feels that the parent is biased towards the other heirs, and in such cases the court needs evidence of the parent being pressured or coerced by one heir. While many such cases are pending in courts in the country, it is recognised that there is no foolproof way to write a watertight will that will reduce chances of it being contested in the court.
The court will examine the witnesses who signed the will to understand if the will was written under pressure and whether the testator was in a sound mind. It can also call for the medical records of the testator.
Validity of the will is challenged by quoting a forged a signature, under influence, says estate planning advisors at Ikia Consulting Services. Under the Hindu Succession Act, in the case of a male, in the absence of a will, the property is divided among the mother, wife and children. In case all of the above are not alive then, the siblings can claim a stake in the property. In case of inherited property rules under property sharing in Hindu Undivided Family is applied. People from other communities are governed by rules under the Indian Succession Act.
A will is important not only to divide the assets but to close the succession loop. If the husband is making a will, he can leave everything to his wife. He can also include a provision that when the wife dies, the property must be divided between the children or if the children are no more, it can be divided among grandchildren and so on.
The language used in the will should be clear and simple. The intention should be clear and also facts pertaining to who gets what should be clearly mentioned. All assets should be mentioned in detail, the location, name of the building, city, area of the property and whom it is being assigned to.
Though not required by the law, registering the will can be evidence that the testator was not forced to sign it. While registering, the testator’s thumb impression and photograph is taken. This proves that the signature and date are correct and that the registrar found nothing suspicious, such as the testator being under pressure.
Every time you want to update a will, in case you have acquired a new asset and want to pass it on, make sure you register the latest one. The registered will is what will be upheld in the court, even if it is not the updated one. If there are more than one will and all are registered, then the latest one will be considered final.
Not essential, but an executor will ensure the final wish is carried out. Usually, this is a close family friend such as a doctor or a lawyer, trusted by all parties.
A will must be signed by two witnesses. Preferably have a doctor as one, so that in case the will is contested in court, the doctor can testify about the testator’s soundness. Make sure the witnesses see the testator signing the will. Attaching a medical certificate would help prove that the testator was in a sound frame of mind while making the will.
One option is to make a video recording of the testator reading out the whole will and signing it. This will prove the person is in sound mind and understands everything before signing the will. Making a video recording of the registration of the will to show there is no pressure and ensuring that a lawyer is present, helps.
Since the will can be written in any language, it can happen that it is written in English but the testator cannot read English. In such a case, a video recording of the will being read out and the testator listening to it and saying on camera that he/she has understood the will helps avoid future disputes.
If there is no change in the intention of the will, then copies of older wills can help to show there was no sudden change of mind. This will not work if the will is changed at the last-minute.
While drafting a will, always justify your action. If you are leaving a larger share of the property to one son or daughter, justify why you are doing so. Then, even if the will is contested, the court will uphold it, saying that it is the intention of the testator. For instance, the parent might feel one son needs more monetary support than the other and, hence, gives the financially weaker son a larger share of the property. Or, if one son has looked after the father better, the father might want to give him a larger share. In many cases, the parent might want to leave a large share to his or her favourite charity, rather than distribute it among the children. Explain the reason behind such actions to avoid ambiguity.