What makes a will legally sound and less open to challenge?

Writing a will for succession planning is an age-old concept and is a common practice for intergenerational transfer of assets. Having a will enables you to bequeath your assets to legatees (beneficiaries) of your choice and in a manner that you deem appropriate. In the event a person passes away without writing a will, he is said to have died “intestate”. In such situations, the assets of the deceased are bequeathed to his legal heirs in a manner as stipulated under his personal laws. 

A will is an easy and simple tool to transfer assets among generations, it is susceptible to challenges over the years. “Individuals intending to write their wills should take professional advice so that the document is well-drafted and does not have ambiguities and room for disputes, after the lifetime of the testator,” says Amit Pathak, Managing Director, Warmond Fiduciary Services Limited.

“One of the first points to consider while writing a will is the 'appointment of an executor' of your will. Choosing the right executor of your will is a crucial step in the estate planning process that requires careful consideration. Upon the demise of the testator, the executor is required to complete legal and administrative processes before handing over the assets to the legatees of the deceased. At times, the executor may also be required to manage conflicts that may arise among legatees during the distribution of the assets. You may consider appointing family members or a professional corporate entity providing such services to act as an executor of your will,” said Pathak.

Furthermore, it is required under law that there are two independent witnesses to the will. It is important to note that “independent witnesses” mean individuals who are not a legatee under the will. The role of independent witnesses comes in handy in the event the will of a deceased is disputed. Pathak says, “It is also advisable to obtain a doctor’s certificate confirming that the individual writing the will is of sound mind and is medically fit to take decisions relating to his property and finances.”

While it is not mandatory to get wills registered, it is recommended that one either gets it registered or notarised. "In practice, a registered or notarised will is more widely accepted and recognised by courts, local authorities (like municipal corporations) and even financial institutions,” adds Pathak.

However, in the event a will is challenged upon the demise of the testator, the executors and the legatees under the Will would have to defend such actions on merits in the court of law. Professionally and well-drafted Wills, where the right “dos and don’ts” are followed, are less likely to be challenged and help in minimising the possibilities of disputes upon the demise of the testator.