Real Estate

Where There is a Will, There is No Other Way – Drafting Watertight Wills

By 23/08/2021April 28th, 2022No Comments
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Drafting Watertight Wills

Watertight Wills: One can measure laws’ commitment to justice and equality by understanding the impact of historically disempowered groups such as women, children, low-income or poor families, from a bare perusal of the laws of intestacy, watertight will, contest, and construction of trusts to name a few. Will play a quintessential role in the protection of loved ones after one’s demise, and laws provide the necessary support thereafter. 

A Will is a “legal declaration of the intention of a testator with respect to the distribution of their assets upon their death.” Hence, it is the sole ground on which the distribution of property takes place. However, a written Will cannot be held as a gospel of truth, therefore can be contested in its capacity.

The provision of modification of a Will at any given point makes the document a complex and tricky one, nevertheless in the absence of a blatant lie or explicit medical evidence proving the incompetence of the testator, contesting of the Will can be onerous. On the flip side, if a person dies without leaving a Will (i.e. intestate), this triggers rules under the laws of intestate succession under which the deceased’s properties pass to relations specified under the laws. However, these default rules will not apply with respect to the property bequeathed under a valid Will.

However, an ambiguous Will means drawing a line in the sand against their validity. Thus, it is imperative to draft a watertight Will that ensures it is uncontested, valid in the eyes of law, and therefore, people suffering an ailment, having a property under dispute, or being involved in a matrimonial dispute, are recommended to draft the Will pursuant to their wishes.

Additionally, it is paramount that details of movable and immovable properties are mentioned in minute detail without any ambiguity which shall also include the value and extent of the property, the name of all the individuals who shall inherit the said property with the monetary benefit arising from the same. 

Moreover, to circumvent disputes, in case any non-member of the family is made the beneficiary, it is prudent that the reason for the same is mentioned in the Will.  More importantly, registration of the Will though not mandatory is advisable as it gives authenticity to the document whereby it is difficult to challenge the same.  Furthermore, a quintessential watertight Will would also include a name of an executor who shall be responsible for dividing the property and the same could be smoothly carried out if the Will is executed and sealed before the Magistrate or the public notary.

The executor is further required to file a probate petition in the court of law to establish their said right as an executor. Another fundamental requirement for making a Will is to affix the signature of the testator in the presence of credible witnesses, as a result of which the intention of the testator is crystal clear. 

Most Wills smoothly sail through the process; however, the testator’s signature is susceptible to be challenged on the grounds of the testator’s unsound mind, the undue influence exercised by interested parties, or the disposition is apparent to be unnatural which raise suspicion towards the free will of the testator.

Therefore, Wills can be beneficial to the descendant family, one that is free from ambiguity and includes the exact details of the assets, names of beneficiaries, and the extent of the benefits along with a declaration to the effect that the Will is the last Will which is free from any coercion or fraud as affixed by the testator in the presence of credible witnesses would help to uphold the legitimacy of the document thereby making it watertight in a true sense.  

 


Tags: water tight, watertightness, construction trusts, construction contest, watertight, construction will

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