The uncertainty during second wave of the Pandemic Covid-19 has resulted into unforeseen implications at large including the untimely casualties in many cases.
In several places, lockdown has been imposed and everyone has been advised to stay indoors unless it is extremely essential to step out, especially senior citizens. People will hardly think for consulting a lawyer for executing a Will.
Why one should have a Will?
Typically, a Will is made for the disposition of property by the owner (testator) to his heirs or whomsoever he wishes to (beneficiaries), which will take effect after his death. It is always advised to safeguard one’s planning for future including safeguarding the interests of beneficiaries of assets i.e., movable and immovable can be documented in time.
This can also prevent the successors from entering into potential hassles in getting the assets transferred or accessible in future as laws pertaining to succession and inheritance are complicated.
What is the way to prepare a Will?
Prior to attempting on preparing a Will it must be noted that there is a no stipulated format for making a Will. However, it is expected to contain certain fundamental details so that it can achieve the purpose for which it has been executed at the first place.
The law also accepts ‘Holograph Wills’ i.e., entirely handwritten Wills, which makes it easier for a person to prepare and execute a Will during a Pandemic. No law mandates a printed or typed Will. However, due care shall be taken in regard to handwriting and spelling errors.
A Will is affected by several factors such a domicile, type of assets, testamentary capacity, intention of the testator, etc.
How to prepare a Will at your own?
A Will can be easily drafted in writing, in a plain white paper and the registration of the same is not mandatory. In order to execute a Will, the document should include the following particulars:
1.Personal Details – Name, list of family members, age and date of birth, permanent address, and present address (at the time of executing the Will).
2.Declare Free Will – A declaration has to be penned down that the testator is writing this Will freely and under no indirect or direct duress, pressure, threat, or coercion.
3. Declare Sound Mind – The testator needs to declare that he is of sound mental and physical health while writing this Will. This is one of the key conditions of a Will to be executed.
4. Mention Trustee & Executor – It is important to mention that the testator is appointing a certain person as trustee & executor of the Will who will distribute the assets and pay the necessary bills/debts/taxes.
5. List of Assets – Details of one’s estate, entire assets consisting real estate and land, jewellery, artwork, cars, and bank accounts that don’t name a beneficiary. Ownership of joint properties will automatically pass to joint owners or to spouse.
6. Mention the date –It is very important to clearly mention the date on which the Will is being prepared.
7. Declare beneficiaries –Clearly specify the legal names and addresses of beneficiaries along with the list of assets they get. It is also important to note that the testator needs to mention whether he is giving equal or unequal distribution of his assets. In case of unequal distribution, the testator needs to mention the reason for the same.
8. Declare a residuary beneficiary – This is an optional requirement wherein it should be mentioned if any person shall be receiving the residuary property or assets after the executor is done distributing all the assets and payments of bills, debts, and taxes. He can be an existing old beneficiary as well instead of a new one.
9. Declare guardians for minor children –In the event of death of both the parents, the testator can appoint a guardian who will take legal responsibility of minor children. It is important to specify full names and age of minor children in the will and the name and address of guardian. It is also suggestive to add name of an alternate guardian in case of any uncertainty.
10.Declaration of a list of funeral preferences – The testator can list the last wishes and funeral preferences like whether he wants the organs to be donated for medical use or to someone in need, or whether he wants the body to be cremated or buried.
11.Signature of Witnesses – The Will should be drafted in the presence of minimum two witnesses. Upon drafting the Will, the testator shall take signatures of all the witnesses present, and mention their full legal names, father’s names, and addresses. The testator and the witnesses shall sign the document and be present together at the same time.
Also, as a safeguard measure, it is advised to have three or four witnesses during the execution of the Will, and it is even better if one of them is a doctor as he could testify for the sound mind of the testator. It should be noted that the witnesses cannot be a beneficiary, i.e., it should be ensured that the testator doesn’t give any legacy to the witnesses.
12. Sign and secure – Sign the copy and keep it at a safe place to secure it. Inform the executor and at least one beneficiary the location where the Will is kept and the process of accessing it.
13. Evidence of the Process – In order to avoid potential conflict during execution of the will, it is advised to engage a professional videographer who shall record the entire process from the very beginning to the end. This video would act as an evidence of the process and would not lead to conflicts or any sort of non-compliance while execution of the Will.
GUIDELINES AND SAFEGUARDS FOR SIGNING A WILL DURING COVID – 19
- If a videographer is being engaged in the process, the newspaper of that particular day shall be shown in the beginning of the execution process wherein the date of that particular day is clearly visible.
- It is advised that the videographer hired for recording the process is a professional and the due charges should be paid against his receipt, which shall be preserved for future reference, if required.
- A doctor should be present there for examination of the testator, who shall thereafter declare that the testator is within his capacity to execute the Will, i.e., the testator is of sound mind.
- The Will must be signed by the testator in the physical or visual presence of minimum two or more witnesses and all of them should be present in the same room at the same time
- The witnesses should be directly known to the testator in order to avoid suspicion or dispute in future.
- It shall be kept in mind that the beneficiaries cannot be witnesses and also any person known directly to the beneficiary and not the testator shall also not be a witness.
- The beneficiaries shall be at least 10-15 years younger to the testator so that on normal circumstances, they can outlive the testator.
- Another suggestion is to go a step further and execute an agreement between all the beneficiaries. The agreement shall state that on a certain date, the Will has been executed by the testator, following all the requirements and thereafter, this Will should not be challenged by either of the beneficiaries or anyone else. If such an agreement is executed by all the beneficiaries, this would negate the risk of future arguments and disputes pertaining to the execution of the Will.
- In case the beneficiaries deny signing the agreement, the testator should send written communications at regular intervals to the beneficiaries or witnesses or the executor stating that he has executed his Will on a certain date and thereafter hasn’t executed any Wills subsequently. The communication can take place virtually or via phone calls and the same shall be recorded and preserved.
- Due to the ongoing pandemic, everyone is advised to wear gloves and masks and use their own pens to avoid every possible contact and 2 metres strict distance must be maintained by all throughout the process.
- The testator is recommended to keep the Will in a separate envelope for few consecutive days to avoid the transmission of virus.
The testator may arrange a call or a video call with his lawyer while executing the Will to validate the process and should take special care and incorporate minimum standards of safety in order to negate the threat of forgery of the Will.
Digitalization has taken a new shape during COVID-19. Digital and handwritten Wills are the need of hour when people are stuck at their homes in lockdown. India is still not favouring the idea of digitalizing the process of Will making unlike other countries that are already way forward in this league.
It is a viable phase to validate the preparation and circulation of Wills through emails. Signature and witnesses can also be allowed through video conferencing and digital signatures can be preferred in such times only after examining the authenticity of the same.
However, until the law is amended and new provisions are made, the testators can prefer the process discussed above.
In the same series, the second part extensively deals with various challenges that arise due to the lack of a Will of a person succumbed to COVID-19, execution of probate, laws applicable for execution of a Will, and concept of Digital Wills in other countries.
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