In India, a Will is not just a legal document—it is a declaration of one’s intentions for the distribution of their assets after their passing.

A basic Will is a simple, straightforward legal document that explains how one's property will be distributed after death. It is an essential part of estate planning, ensuring that your assets are allocated according to your wishes.

Governed by the Indian Succession Act of 1925, Wills serve as crucial instruments in estate planning, ensuring that a person’s last wishes are respected and executed according to their desires.

However, life is ever-changing, and so are the circumstances that might affect how one chooses to distribute their estate.

This article explores why it’s vital to regularly update your Will and the processes involved in ensuring its legal validity under Indian law.

The Importance Of Keeping Your Will Updated

Keeping your Will updated is crucial for ensuring that your estate is managed and distributed according to your current wishes and circumstances. Clarity in distributing assets and personal property is essential to prevent confusion or disputes among Beneficiaries.

Let’s explore why it’s important to regularly review and update your Will, especially in light of significant life changes, financial shifts, relocation, or legal amendments.

1. Changing Family Dynamics

Marriages, Divorces, and Births

Significant events such as marriages, divorces, and births can alter your familial relationships dramatically. It’s essential to update your Will to reflect these changes. Specifying relationships with family members in your Will ensures clarity and helps avoid potential disputes.

For instance, after a marriage, you might want to include your spouse in your Will. Conversely, following a divorce, you might choose to remove your ex-spouse from the Will.

Similarly, the birth of children or grandchildren typically motivates you to add provisions to support them.

Deaths

The passing away of a Beneficiary or an Executor named in your Will necessitates revisions.

If a primary Beneficiary dies, you might need to reallocate your assets to other heirs or consider adding charitable donations.

Similarly, if your appointed Executor passes away, finding a suitable replacement to manage your estate efficiently becomes essential.

2. Financial Changes

Acquisition or Disposal of Assets

Any significant changes in your asset portfolio, such as purchasing new property or selling any assets listed in your Will, require updates to ensure that your estate plan accurately reflects your current holdings.

Specifying Beneficiaries for investment accounts is also important, as these accounts may have designated Beneficiaries or be marked as 'transfer on death'. This ensures that there are no ambiguities in asset distribution among your heirs.

Changes in Business Ownership

If you are a business owner, changes in business valuation, structure, or ownership should prompt an immediate update to your Will.

This is crucial for the seamless transition of your business interests and can help mitigate any potential disputes among your heirs regarding business succession.

3. Relocation

Relocating to a different state or country can have profound implications on how your estate is handled due to differing legal requirements and estate laws.

It’s imperative to consult with legal experts in the new locality to ensure your Will complies with local laws and continues to effectively execute your wishes.

4. Changes in Laws

Laws governing estates, taxes, and inheritance can change due to legislative updates. Staying informed about these changes is critical.

For instance, changes in tax laws might affect the tax liabilities on your estate, prompting a need to adjust the structuring of asset distribution in your Will to optimise tax benefits for your Beneficiaries.

These changes can significantly impact estate taxes, making it essential to review and update your will to minimise these taxes and ensure all intended assets are included.

By regularly updating your Will, you safeguard your interests and those of your Beneficiaries, ensuring that your estate is managed as per your most current wishes.

This proactive approach not only provides peace of mind but also helps prevent potential legal disputes and ensures that your legacy is honoured as you intended.

Legal Framework & Requirements In India

These legal stipulations and types of Wills provide a structured approach to handling one’s estate in India, ensuring that the rights and wishes of the deceased are respected and legally upheld.

Having a last Will and testament is crucial as it ensures a legally-binding document for the distribution of assets and the care of minor children after an individual's death.

Legally Valid and Execution Requirements

Sound Mind and Legal Age

Under the Indian Succession Act, a Testator must be of "sound mind" to draft a Will. This means they need to be fully aware of the nature of the document they are creating and understand the extent of the assets they are distributing.

They should also comprehend the implications of their decisions on the potential heirs. Legally, the Testator must be at least 18 years old, or 21 in cases where they are under a legal guardianship, which aligns with the majority age in India.

Witnesses

The Will must be attested by at least two Witnesses to be valid. These Witnesses must see the Testator sign the Will or acknowledge the signature.

It’s crucial that these Witnesses are not Beneficiaries of the Will, to avoid any conflict of interest.

To ensure impartiality, you may consider having legal counsel serve as a witness.

This requirement is designed to protect the process from accusations of undue influence or fraud.

2. Types of Wills

Mutual Wills

Common among spouses, mutual Wills are contracts where each party agrees on the distribution of their joint estate after both pass away.

These Wills include provisions that prevent the surviving spouse from changing the Will after the death of the first spouse.

This type of Will is beneficial for ensuring that the final wishes regarding the disposal of the estate are respected, protecting the rights of the surviving spouse and other Beneficiaries as initially agreed upon.

Joint Wills

These are Wills made by two or more people together, usually by spouses or business partners.

They are unique in that they are intended to take effect after the death of all the Testators, not just one.

This means the Will cannot be revoked or changed without the consent of all parties involved while they are alive.

Upon the death of one Testator, the surviving individuals still cannot alter the Will's terms, which can sometimes lead to complications if circumstances change significantly.

Privileged Wills

These are Wills made by soldiers, airmen, navy personnel, or others engaged in actual warfare. The law provides a certain leniency towards the formalities required in drafting these Wills.

For instance, a privileged Will can be oral or written and does not necessarily need Witnesses. This flexibility ensures that those who are in immediate peril can still arrange their affairs without concern for strict legal formalities.

Unprivileged Wills

The most common type of Wills, made by civilians not in active duty or imminent peril. These require strict adherence to formalities, such as being in writing and properly witnessed.

Unprivileged Wills ensure that there is clear, documented evidence of the Testator’s intentions, which helps in preventing disputes during the probate process.

A Step-By-Step Guide To Updating Your Will

1. Review and Decision-Making

Regular reviews of your Will are essential, especially after significant life events such as marriage, divorce, the birth of a child, or the acquisition or disposal of a major asset.

This step involves evaluating your current Will to see if it still reflects your wishes and circumstances.

Consider any new family dynamics or financial changes that might influence how you want your assets distributed.

It's generally recommended to review your Will every three to five years or after any major life change.

Consulting an Estate Planning Attorney

Updating a Will isn’t just a personal decision but a legal process. Consulting with an estate planning attorney is crucial to navigating the complexities of estate law and ensuring your Will is legally enforceable and customised to your requirements.

Working with an estate attorney can be particularly beneficial for individuals with complex estates or specific legal concerns, as they can help prepare necessary documents before meetings to save time and money.

These professionals can provide valuable advice on how to structure your Will to avoid potential legal issues and ensure that your estate is handled as you wish.

They can help clarify any new tax implications and ensure that your Will complies with current laws, which may have changed since your last update.

3. Drafting the New Will

Once you’ve consulted with your attorney and decided on the changes, the next step is to draft a new Will.

You can create your own Will using DIY templates or online services, which are easy, affordable, and legally binding.

This document should clearly articulate the distribution of all assets, from monetary funds in bank accounts to personal items of sentimental value.

If you have minor children, it’s crucial to appoint Guardians in the event of your untimely demise.

Ensure that every asset is accounted for and that the instructions are unambiguous to avoid disputes among Beneficiaries.

4. Execution and Witnesses

After drafting your Will, the next crucial step is its execution. Indian law requires that the Will be signed by you (the Testator) in the presence of at least two independent Witnesses.

A self-proving affidavit can be attached to the Will to make it legally binding and facilitate the probate process. This affidavit ensures the Will's enforceability by reducing the likelihood of Witnesses being called into court to validate their signatures and the Will's authenticity.

These Witnesses must be present at the same time and must witness you signing the Will or acknowledge your signature.

Importantly, these Witnesses should not be Beneficiaries in the Will to avoid conflicts of interest and ensure impartiality.

5. Safe Storage and Accessibility

Once executed, storing the Will safely where it is protected from damage, loss, or tampering is essential.

It is also important to list and distribute personal property in the Will to ensure clear and organised distribution according to your wishes.

However, it should also be accessible enough that the appointed Executor or a trusted individual can retrieve it when needed.

Inform your Executor or a close family member of the location of the Will without necessarily revealing its contents, to ensure it can be easily accessed after your passing.

By following these steps, you can ensure that your Will is updated to reflect your current wishes and circumstances, providing peace of mind that your assets will be distributed as you intend and that your loved ones are cared for in your absence.

The Bottom Line: How Yellow Can Help

Regular updates to your Will can safeguard your intentions and ensure that your assets are distributed as you wish without legal hurdles.

If you die without an updated Will, the probate court will oversee the distribution of your estate according to religious succession laws, which may not align with your wishes.

It reflects not only changes in your personal circumstances but also adaptations to legal reforms, providing peace of mind to both you and your Beneficiaries.

It is not just a legal obligation but a responsibility to your loved ones to keep your Will current.

Yellow is designed in a manner that makes not only creation of, but also updating, your Will quick and easy. With the Yellow app and webapp, all it takes is the click of a button to make changes to your current Will. You can do it from the comfort of your own home.

Our team of legal experts have more than 50 years of combined experience, and can support you through all facets of estate planning, including making, updating and registering your Will, forming Trusts, asset transfer, Legal Heir and Succession Certificates, Probate, and Living Wills.

‍