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Siblings fighting over property after the death of parents is nothing new. Even if there is a will, heirs do squabble over the division of assets. While there is no foolproof way to write a watertight will, the testator (person who makes one) can take some precautions to reduce the chance of it being contested in court.
One of the most common reasons for a will to be contested is when an heir feels the parent is biased and has given others a larger share of the property or assets. "Several such cases are pending in court, where Brother A says that as the parent was living with Brother B, the latter has influenced the parent to get a larger share. The court will need evidence of the parent being coerced or pressurised by one son," says Anil Harish, partner of law firm DM Harish and Company.
As evidence, the court will examine the witnesses who signed and look at how the will was written - under pressure or if the testator was in sound mind. It can ask for medical records and examine the testator's doctor.
A common way to challenge the validity of a will is to say the signature is forged or was signed under undue influence, says Gautami Gavankar, principal advisor, estate planning, at Kotak Mahindra Trusteeship Services. "Proximity to an heir cannot be cited as a clause to challenge the validity of the will. Those challenging have to prove that the person making the will was not of sound mind."
Under the Hindu Succession Act, in the case of a male, in the absence of a will, the property is divided equally among the mother, wife and all children. If the mother is not alive and the testator has no wife or children, the siblings can claim a stake in the property as next of kin. If it is inherited property, it will come under the rules pertaining to a Hindu Undivided Family.
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, says Gavankar.
If the property is divided equally among all your heirs, there is no scope for any dispute. Problems typically arise when the division is not equal. It is usually in such cases that disputes arise and there are higher chances of the will being challenged in court. Let us see some precautions one can follow in drafting a will.
Detail all assets
The first step to avoid disputes is to list all the assets in detail, especially immovable ones. For instance, if there's more than one flat, mention the city, the name of the building, the area of the flat, car parking if any and so on. This will make it very clear which property you are referring to. Also, mention which family member you are willing the particular property to.
"The language used in the will should be simple. The testator's intention should be clear - what he/she wants to give which son or grandson," Gavankar says.
Register the will
While this is not required by law, registering the will can be evidence that the testator was not forced to sign it, says Harish. While registering, the testator's thumb impression and photograph is taken. This is proof that the signature and date are correct and that the registrar found nothing suspicious, such as the testator being under pressure.
Updating
The date is important because in many cases when a new will is written, the testator might not destroy an older one. If a family member has a copy of the old will, it can be used for challenging the new one's validity. So, 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, notes Gavankar. If there are more than one will and all are registered, then the latest one will be considered final.
Executor
Appointing one is not essential but an executor will ensure the final wish is carried out. It helps if this is a close family friend such as a doctor or a lawyer, trusted by all parties.
Witnesses
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. "Many times, people attach medical certificates with a will to show the soundness of the testator," Gavankar says.
Video recording
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. "You can also make a video recording of the registration of the will to show there is no pressure. Ensure your lawyer is present," advises Harish.
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.
Copies of old wills
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 indeed changed at the last minute.
Justify your action
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.
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