9 Mistakes to avoid while making the Will


9 Mistakes to avoid while making the Will


Statistics suggest that around 66% of the civil cases in the courts are related to land and property during 2015-16. Among these, around 52.70% cases are fought amongst the members of the same family.

There are various mistakes which are often committed while drafting the will resulting in litigation. Since mistakes are noticed only after the death of the maker of will (testator), it defeats the very purpose of making it. Careful & proper drafting is a key in avoiding litigation and ensuring proper wealth distribution. Let us see some of the most common mistakes which should be avoided while drafting the will.

1. Using vague language:
In one of the will, the testator has written that the property A will be given to Mr. X. However, if his financial status is good, it will not be given to Mr. X but will be given to Mr. Y. Now, Mr. X and Mr. Y are in the court fighting the case. One should make a will free with clear wording, free from discretion and vague language. If any word, sentence is likely to create confusion amongst the beneficiaries, it should be avoided or should be spelt with more clarity. The property details, Jewellery details, etc should be very clear & identifiable. As far as possible, the source of acquisition of jewellery (like earlier inheritance, acquisition on the occasion of marriage, will of other persons etc) or source of investment in the jewellery may also be mentioned so as to avoid any income tax allegation of will being used as a colorable device. Use of the word for beneficiary like chinku, pinku, tinku, etc may not be avoided & their official names may be used to ensure smooth government record updates during property transfer.

2. Non registration of the will:
Registration of a Will is optional  & its non-registration does not invalidate a Will. However, it is always advisable to get it registered as it establishes its authenticity & genuineness. One may note that the notarization of the will during the lifetime of the testator may not be that enough. Registering a will may end various issues of litigation like sanity of mind, coercion, forged signature, etc as the person creating the will has to appear before the registrar.

3. Include all assets in the will including digital assets & assets with nomination:
Time has changed and the virtual/digital assets are on the rise. Testators should not only know who will inherit their main assets like house, cars, bank accounts and personal possessions but should also add about virtual / digital assets. Testators should not forget to add a ‘residue’ clause which will specify the name of the person who will inherit the assets not mentioned in the will or any assets acquired subsequent to making of the will.

4. Sign in the presence of the witnesses:
Witness may be required to testify the intention or state of mind of the testator & so has a pivotal role in will. To make the will free from any challenge, it must be signed by at least two witnesses. Absence of witnesses can invalidate the Will. The requirement is not only to have the will signed by the witnesses but also that the person making the Will has signed the same in the presence of the witnesses.

5. Appointing the wrong person as an executor:
An executor is the person who deals with the administration of the estate after the death of the testator. They have duties to carry out the wish of the testator in line with the terms of the will. Non-mentioning of the executor doesn’t invalidate the will but then the deceased’s family may have to apply to the court for appointment of an executor which not only takes time but also carries cost  but also kills unwanted time & energy. Ideally, an executor should be residing in the same city where the testator is residing and he should be younger & trustworthy. An alternate executor name may also be provided in the will if the primary executor is unable to act due to death, incapacity or unwillingness.

 6. Non updating the will periodically:
Properties listed in a will may be disposed of after the will is created or family needs, beneficiary financial positions, and family dynamics can change over time. Therefore, it is essential to periodically review and update the will. Failing to do so can result in outdated instructions and potential family disputes. A will can be updated an unlimited number of times, either by rewriting it or by adding codicils (amendments to the existing will).

7. Minor children as inheritors:
When a minor is a beneficiary, appoint a trustworthy and capable guardian in the will. If not specified, the court may intervene, causing delays. Ideally, a parent, grandparent, or relative should be nominated as the guardian.

8. Aligning Will with Nomination:
One of the biggest mistakes by the testator is presuming that the nomination replaces the need for will. Having a nominee helps with the immediate transfer of certain movable assets and cash. A nominee is only a temporary caretaker of the assets who has to pass the assets eventually to the legal heirs. In case there are nominees, there is still a need for these legal documents.

9. Enclosing Documents with Will:
If the maker of will doubts that the validity of the Will may be questioned subsequently, he may enclose a medical certificate stating that the person making the Will is mentally fit of sound mind, and can deal with the distribution of her assets. Further, the testator may also add the photographs, bills, voucher with the will if required to make it more authentic and exhaustive.

A poorly drafted will can spell trouble for the legal heirs and beneficiaries, turning legacy into a legal nightmare. A well-crafted will, on the other hand, is more than just a legal document; it’s a love letter to the beneficiaries. To ensure that the wealth is smoothly distributed to the loved ones, consider enlisting a professional. After all, you want to leave behind warm memories, not courtroom dramas!


[Views expressed are the personal view of the author. Readers are advised to seek professional advice before taking any decisions. Readers may forward their feedback & queries at nareshjakhotia@gmail.com Other articles & response to queries are available at www.theTAXtalk.com]