Preparing a WILL —
basic requirements for NRIs.

Why a WILL matters — and why it matters more across borders

As one grows older, there is a need to facilitate the easy disbursement of one's possessions and properties to one's loved ones and dependants, so that there is no legal battle among them. This is the ordinary case for a WILL, and it is a strong one.

Across borders, the case is stronger still. An Indian asset held by an NRI is often dealt with by family members who are themselves not in India, who may not know the Indian rules, and who may not agree among themselves. A clear WILL resolves most of these questions before they arise. It also avoids a situation where the distribution of the Indian asset is decided by Indian personal law rather than by the testator's own wishes.

It is best to consult an advocate before preparing a WILL — and better still if the advocate is a person in whom you have the utmost confidence. Where the asset is in India, the advocate should be qualified in Indian law.

When to make a WILL

It is better to make a WILL at a younger age. As and when events or changes in the family necessitate changes, the WILL can be amended. One advantage of making a WILL at an earlier age is that unscrupulous relatives are less likely to be able to contest the legality of the WILL on the basis that the testator was not of sound mind at the time of its making.

A WILL should always be dated. If more than one WILL is made, the one bearing the latest date nullifies all earlier Wills. It is better still for the later WILL to state, in terms, that it cancels all previous Wills — so that there is no room for argument.

Form and language

A WILL should be simple, precise, and clear. Where it is not, problems arise for the legal heirs. Relatives and others may attempt to distort the interpretation of the WILL for their own benefit. A trusted advocate can help ensure the document says what it is intended to say.

A WILL can be hand-written or typed. No stamp paper is necessary. The essential requirements are that it is in writing, that it is signed by the testator, and that it is attested by witnesses.

Execution — signing and witnesses

The execution of the WILL is the point at which most disputes later arise. The requirements are straightforward, and should be followed exactly:

• Signature by the testator. The WILL should be signed by the testator in the presence of at least two witnesses, who must attest the signature.
• Full names and addresses of witnesses. These should be clearly indicated in the WILL.
• A medical witness, where possible. It is better if one of the witnesses is a medical practitioner — though this is not essential. Where the testator is of advanced age, the practitioner should certify that the testator is of sound mind, and should note their registration number and degree.
• Witnesses should not be beneficiaries. A witness should not be a beneficiary of the WILL.
• Witnesses should not be executors. A witness should also not be an executor of the WILL.

The reason these rules matter is simple: a WILL is a document that is tested after the testator is no longer able to explain it. Every step that removes a possible ground of challenge — independent witnesses, a medical certificate, a clean attestation — is a step that reduces the risk of a dispute later.

Numbering, corrections, and the total pages

Each page of the WILL should be serially numbered and signed by the testator and the witnesses. This is to prevent substitution, replacement, or insertion of a page or pages by persons with fraudulent intentions.

At the end of the WILL, the testator can indicate the total number of pages. Corrections, if any, should be countersigned. Where the WILL is signed in counterparts — copies executed separately — each copy should carry the same numbering and the same signatures.

The executor

There should be an executor of the WILL — the person entrusted with the responsibility of ensuring that the assets are distributed according to the provisions of the WILL. Sometimes more than one executor is required to execute the WILL.

The testator should take the prior consent of the person whom they wish to name as executor. Naming someone without their knowledge is a common cause of delay and difficulty after the testator's death.

Where to keep the WILL

The WILL may be kept in a safe place — a bank vault is common. The executor and the beneficiaries should be informed where the WILL is kept.

It is advisable to keep a signed copy of the WILL with a trusted advocate. Duplicate copies may be made, signed by the testator and the witnesses, and kept at separate places, so that if one is misplaced the other may be used.

Assets whose value fluctuates

Sometimes the value of certain items — share certificates, for example — fluctuates. In such a situation, it is better to mention the percentage of such item that should go to each beneficiary, rather than a fixed amount. A fixed amount may no longer reflect the position at the time of the testator's death.

Changing the WILL — and the codicil

Whenever changes in family circumstances, or other reasons, necessitate a change in the WILL in the intervening period — from the time of making the WILL to the time of the testator's death — the WILL can be amended. Even if there are changes in the nature of the property or assets, an amendment may be needed.

For making changes only in certain clauses of the WILL, a codicil is to be prepared. A codicil is a supplement to the WILL. It should be read in conjunction with the WILL and has the power to make appropriate changes in the relevant clauses.

If there are too many changes in the WILL, it is better to prepare an entirely new WILL — rather than have the original document and a series of codicils that must be read together.

Registration

It is not compulsory for one to register a WILL with the registering authority. However, in case any property or asset is given to any charitable organisation, registration should be done.

Registration is not the same as validity. A WILL that is not registered is still a valid WILL, provided it has been executed in accordance with the law. Registration merely provides a record, and can be useful where the WILL deals with charitable gifts.

The WILL takes effect only on death

A person's WILL becomes operative only after their death. There is no restriction on the way in which a person can deal with their property even after writing the WILL. The property remains the testator's to sell, mortgage, gift, or otherwise deal with, and a purchaser from the testator takes the property free of any claim under the WILL.

Where the disputes usually arise

In our experience with these matters, the WILL disputes that come to court most often are these:

• Want of sound mind. A WILL executed by a testator of advanced age, without medical certification, is more vulnerable to a challenge on the ground that the testator was not of sound mind.
• Undue influence. Where a single beneficiary takes a disproportionate share, and the WILL was prepared in circumstances where the testator was dependent on that beneficiary, a challenge is more likely.
• Ambiguity of language. A WILL that is not precise about which property goes to which beneficiary invites competing interpretations — and, often, litigation.
• Missing pages or unsigned pages. A page that is not signed by the testator and the witnesses may be challenged as an insertion.
• No executor, or an unwilling executor. A WILL without a named executor, or with an executor who has not consented, causes delays in the administration of the estate.
• Cross-border confusion. Where the testator has assets in more than one country, and the WILL deals only with the Indian assets, the interplay between the Indian WILL and any foreign WILL should be thought through — and stated clearly.

Most of these disputes could have been avoided by attention to the execution of the WILL, and by clear drafting.

How Kavao Law can assist

We advise NRIs, foreign nationals, and their families on the preparation and administration of Wills dealing with Indian assets. Our work typically includes:

• Drafting a WILL that deals with Indian assets in clear and enforceable terms.
• Advising on the interplay between an Indian WILL and a foreign WILL, and on the choice of governing law.
• Advising on the appropriate witnesses, the attestation, and the medical certification where the testator is of advanced age.
• Preparing codicils where a change is required to a limited clause of an existing WILL.
• Advising on the position of the executor, and on the administration of the estate after the testator's death.
• Advising on the probate process in India, where probate is required or desirable.
• Assisting with the transmission of Indian assets — property, shares, bank deposits — to the beneficiaries named in the WILL.

For more on this service, see our Power of Attorney practice-area page and our Property & Land Records practice-area page.

A closing note

The information in this article is general in nature and is intended to give NRIs a clearer sense of how a WILL dealing with Indian assets should be prepared. Every WILL depends on its own facts — the personal law applicable to the testator, the nature of the assets, and the family circumstances.

A WILL is one of the simplest legal documents to prepare well, and one of the most difficult to repair after the testator's death. Where the Indian assets are significant, or the family circumstances are complex, seek case-specific advice before executing the WILL.