Will Drafting — why your nominee does not inherit, and what actually makes a will valid

Nomination is not inheritance

Start here, because it is the belief that does the most damage. A very large number of Indians have filled in a nominee on a bank account, an insurance policy, a provident fund and a demat account, and consider their estate planning done. It is not.

Read the second quotation slowly. There are two ways property passes on death in India — under a will, or by intestate succession where there is no will. Nomination is not a third. A nominee receives the asset so that the bank, the insurer or the depository has somebody to hand it to without waiting years. What the nominee then holds, they hold for whoever is legally entitled.

The practical consequences are worth spelling out:

• Naming one child as nominee does not disinherit the others. They remain entitled to their shares, and the nominee child may be required to account to them.
• A nominee who spends the money may be liable to the people who were actually entitled to it.
• An outdated nominee is a live problem. A former spouse or a deceased parent still named as nominee complicates the release and helps nobody.
• The will governs, not the nomination form. Where the two conflict, the question of entitlement is answered by succession law and the will — not by whichever form was filled in last.

What happens if you do not make one

Dying without a will is not neutral. It is a choice to let a statute divide your estate according to a formula written for everybody rather than for your family.

What that formula says depends on the personal law that applies to you, and the differences are substantial. Shares are fixed, the classes of heir are fixed, and your own view of who needs what and who has already been provided for counts for nothing. Three consequences follow in almost every intestate estate we see:

• The division is by formula, not by need. A child who has been supporting you for a decade and one you have not spoken to in twenty years take the same share.
• Somebody has to be appointed to administer it. Without an executor named by you, the family applies to court, which takes time and costs money.
• No guardian is named for minor children. That is a decision you could have made and did not.

There is also a quieter cost. An estate divided by a formula tends to be divided into fractions of indivisible things — a house held one-third, one-third, one-third by three siblings who each want something different. A very large share of the family property litigation in this country begins exactly there, and a will that said "the house to A, and equivalent value to B and C" would have prevented it.

Section 63 — how a will must be executed

A will is not valid because it is on stamp paper, notarised, registered or typed on a lawyer's letterhead. It is valid because it was executed the way the statute requires. Everything else is optional.

Four things in that section repay attention.

A mark is enough. A testator who cannot write may affix a mark, or another person may sign for them in their presence and by their direction. A will is not the preserve of the literate.

Placement matters. The signature must be placed so that it appears intended to give effect to the writing as a will. A signature on a covering note, or on the first page only of a multi-page document with no page signatures, invites exactly the argument you do not want.

The witnesses must sign in the testator's presence — but they need not be present at the same time as each other. That flexibility is useful, and it is routinely misunderstood in both directions.

No particular form of attestation is necessary. There is no magic wording. What matters is that each witness saw the signature made, or received the testator's personal acknowledgment of it, and then signed in the testator's presence.

The witness mistake that quietly voids bequests

This one is worth reading carefully, because the position differs depending on which law governs the will — and most of what is written about it online gets that distinction wrong.

Under Section 67 of the Indian Succession Act, a bequest to a person who attested the will, or to that person's spouse, is void. The will itself is not affected — it remains valid and is treated as sufficiently attested. It is the gift to the witness that fails.

The critical qualification: Section 67 does not apply to wills made by Hindus, Buddhists, Sikhs or Jains. For those wills, a bequest to an attesting witness is not void under that section.

Who should witness, then? Two adults of sound mind who are not beneficiaries and not married to beneficiaries; who are younger than you if possible, and likely to be traceable years later; who are willing to be contacted if the will is questioned; and whose full names, addresses and identity particulars go on the will itself, so they can actually be found.

Registration — optional, and worth understanding

A will does not have to be registered in India. An unregistered will, properly executed under Section 63, is a valid will. This surprises people who assume registration is what makes a document real.

There is a related detail that shows how the law treats wills differently from everything else. The Registration Act provides that "no document other than a will" shall be accepted for registration unless presented within four months of execution. Wills are expressly carved out of that deadline — they may be presented at any time, including after the testator's death.

So why register at all?

Our usual advice: register where the estate is substantial, the family is complicated, or you think somebody may contest. Do not register where privacy matters more and the arrangement is uncontroversial. Either way, what protects you is execution, not the registry.

What the will must contain

The clause almost everyone forgets

If you take one drafting point from this page, take the residuary clause.

A will lists assets. Life then continues. You sell the flat and buy another. You close one account and open two. You inherit something. You are paid a bonus that sits in an account the will never mentioned. By the time the will is read, it is years old and the list is no longer complete.

Without a residuary clause, everything the will did not name is intestate. It passes by the statutory formula, to the statutory heirs, in statutory shares — which may be exactly what you were trying to avoid when you made the will. In the worst cases most of the estate falls outside the will entirely because the specific assets named in it no longer exist.

One sentence prevents all of it: all the rest, residue and remainder of my property of every kind and wherever situated, whether acquired before or after the date of this will, shall go to …

Choosing an executor

The executor is the person who has to do the work: collect the assets, deal with banks and registrars, pay the debts, obtain probate where it is required, and distribute what is left. It is an administrative job with a family dimension, and choosing badly causes more trouble than most people expect.

• Somebody younger than you, or at least likely to outlive you and still be capable.
• Somebody methodical. This is paperwork, deadlines and correspondence with institutions, not judgement calls.
• Somebody the family will accept. An executor every sibling distrusts turns a simple estate into a contested one.
• Somebody willing. Ask them first. An executor who declines after your death leaves the family back at the court's door.
• Name an alternate, always.
• Consider two acting jointly where the estate is large or the family is divided — and say whether they must act together or may act separately.

A beneficiary may be an executor and very often is — a spouse or a child is the usual choice, and there is nothing wrong with it. What causes trouble is appointing one beneficiary as executor in a family where the others already feel unfairly treated. In that situation a neutral executor is worth the awkwardness of asking.

Minor children and guardianship

For a parent of young children this is often the real reason to make a will, and it deserves two separate decisions.

Who cares for the children — the person they will live with. And who manages what they inherit — the person who controls the money until they are old enough. These are different skills and they can be different people. Naming a warm, chaotic sibling as guardian of the person and a careful, distant one as guardian of the property is a perfectly sensible arrangement.

The will should also say at what age the children take their inheritance outright. Majority is the default; many people prefer a later age, or staged release. And it should name an alternate guardian, because the first choice may be unable or unwilling when the time comes.

Limits on what you can give away

A will can only dispose of what the law lets you dispose of, and that differs by the personal law that governs you. This is one of the first things to establish, because it determines what the document can validly do.

• Under Muslim personal law, a bequest is generally limited to one-third of the estate unless the heirs consent, and a bequest to an heir generally requires the consent of the other heirs. A will attempting more than that is not simply ambitious; it is ineffective to that extent.
• Under Hindu law — which for this purpose includes Buddhists, Sikhs and Jains — a person may ordinarily dispose of their separate and self-acquired property freely. Ancestral and coparcenary property raises separate questions about what share is yours to give.
• Jointly held property may pass by survivorship rather than under the will, depending on how it is held. A will that purports to give away a jointly held asset may be dealing with something that never becomes part of the estate.
• Property already gifted or settled is not yours to bequeath, however recently you parted with it.

Probate — when it is needed

Probate is a grant from a competent court certifying the will and the executor's authority to administer the estate under it. It is not required for every will in India.

Whether it is required depends on where the will was made, where the property is, and which law governs the testator. In broad terms it is required in specific territories and situations rather than universally, and outside those, an executor can often deal with the estate on the will alone — though banks and registrars may still ask for it, or for an indemnity in its place.

Two practical points at drafting stage, which is why this belongs on a drafting page rather than only on a litigation one:

• It affects how the will should be structured. Where probate will be needed, clarity about the executor, the assets and the beneficiaries saves months later.
• It affects your choice of executor. Probate is an application to court; an executor who cannot face that is the wrong executor for an estate that will need it.

Changing or revoking a will

A will speaks from death. Until then it is entirely yours to change, as often as you like, for as long as you have capacity.

A codicil, for small changes

A short supplementary document that alters part of the will and leaves the rest standing — adding a beneficiary, changing an executor, adjusting one bequest. It must be executed with the same formalities as the will itself: signed by you, attested by two witnesses, each signing in your presence. A codicil scribbled and signed alone is not a codicil.

A fresh will, for anything substantial

Where several things are changing, a new will that expressly revokes all earlier wills and codicils is cleaner than a stack of amendments. It also removes the risk of a reader trying to reconcile three documents written years apart.

And when you make a new will, deal with the old one. Destroy the original, tell the executor which is current, and if the earlier will was registered, make sure the new one is too — otherwise the registry holds a document that looks authoritative and is not.

When to review

• Marriage, or the end of a marriage
• A birth or a death in the family
• Buying or selling property
• A significant change in what you hold, or in a beneficiary's circumstances
• Moving to another state or country
• And in any event, every few years

Why wills fail

1. Executed wrongly. Witnesses who did not sign in the testator's presence, or a signature placed so that it does not appear intended to give effect to the writing as a will.
2. A beneficiary attested it. Void under Section 67 where that section applies, and an undue-influence argument in every case.
3. No residuary clause, so part of the estate is intestate.
4. Assets described too loosely to be identified, or described by reference to things that no longer exist.
5. No substitution clause, so a beneficiary predeceasing the testator creates a gap.
6. An earlier will never revoked, leaving two documents in play.
7. Altered on the face of it — strikings, margin notes, an inserted page.
8. The original cannot be found. Nobody knew where it was kept.
9. It gave away what was not the testator's to give — a jointly held asset, an ancestral share, property already gifted.
10. Capacity challenged, with nothing in the execution to answer it.
11. The executor was never asked, and declined.

Notice how few of these are about what the will said. Almost all of them are about how it was made, what it left out, and where it was kept. That is where a drafted will earns its fee over a downloaded template.

Time and cost

How to order it — six steps

1. Tell us about the family. Who is in it, who depends on you, and anything you already know is likely to be contentious. This shapes the will more than the asset list does.
2. List what you hold. Property, accounts, investments, insurance, business interests, valuables, digital assets — and liabilities. Approximate is fine to start.
3. We tell you what you can validly deal with, whether probate is likely to be required, and what the will should provide for. You approve before drafting.
4. We draft and send it for your approval. You read every clause, check every name, and tell us what to change. Most wills go through two or three drafts and that is normal.
5. Execution. We tell you exactly who signs, where, in whose presence, and what goes on each page — and we check your choice of witnesses before the day.
6. Registration if you want it, then payment. And a plain note for your executor on where the original is kept. You pay after the work is done.