MISTAKES TO AVOID IN A WILL
1. Improper execution
· As a will can be written on any piece of paper, you should sign it legibly to give it authenticity.
· This needs to be followed by its attestation by 2 or more witnesses in your presence.
· Though the witnesses need not sign in each other’s presence, they must see you sign the will, or you must at least acknowledge in their presence that you have signed it and were mentally fit to execute the will, as they will authenticate the will if it is contested in court.
· Avoid ambiguity and vagueness in terms of your expression and thought.
2. Using nicknames or incomplete names
· You must be specific regarding names and relationship of the beneficiaries in your will.
· In case of ambiguities, how your will is interpreted will then depend on the court.
3. Improper description of property
· You must clearly describe the property to be bequeathed, and specify it if quantifiable.
· When it is not quantifiable, describe it well so that a clear reference can be drawn.
· Ensure that one’s ancestral property is not willed to the exclusion of legal heirs.
4. No residuary legatee
· A residuary legatee inherits the ‘residue’ of the property, and can even be one of the beneficiaries.
· With no residuary legatee, any remaining property will be divided among your legal heirs only as per succession laws.
5. Gifting property to attesting witnesses
· If you gift property to an attesting witness in the will, the document will remain valid, but the witness will not be able to inherit the property.
· The property will, instead pass on to the residuary legatee, who also should not be an attesting witness.
6. Passing on property to unborn people
· Unlike trusts, any property bequeathed to an unborn person will be considered invalid.
· Though the person may not exist when the will is drawn, it is essential that the person must be in existence when the will becomes operational.
· Otherwise the legacy will lapse, leaving the court to decide who gets the lapsed money.
7. Incorrect condition for inheritance
· You can impose conditions for inheritance of your property, without the mention of any illicit consideration.
· However, if the condition imposed is immoral or impossible in the eyes of law, the legacy will automatically lapse.
8. Rule against perpetuity
· The Rule against Perpetuity states that the property cannot be tied for an indefinite period, for passing it on to a generation, which may or may not be in existence currently, but will certainly not attain majority within 18 years of your death.
9. Not updating your will
· All you need is to physically destroy the old one, or create a fresh one after which the old document is automatically revoked, unless its replacement will is deemed invalid.
· If you don’t want to change your will entirely, you can opt for a codicil, which can also be used to cancel some provisions stated in a will, as well as annul an existing codicil.
· In case there is a contradiction between the will and codicil, the codicil is referred to as it reflects the changes in the will.
10. No probate
· Probate is the process of certifying a copy of the will by a competent court to establish the legal capacity of the person making the will.
· In some cities, it is mandatory to have a probate, though in other places, it is not necessary.
· In case of immovable property, a probate is required, and even financial institutions usually insist on a probate.