A couple of years back we heard this tragic story about a well-off, retired couple. Mrs Iyer was diagnosed with stage IV cancer and passed away soon after. A year later, Mr Iyer was diagnosed with Alzheimer’s disease. Friends and extended family rallied around, wanting to help but were unaware of their assets or whether they had made a Will. It was a helpless situation. As a DINK (double income no kids) couple, the Iyers had always been prudent with their expenses, saving and investing wisely so that they could lead an independent retired life.
They had made mirror Wills bequeathing all their assets to each other
(in case one of them dies before the other) and bequeathing it all to an
NGO in case both happen to die together. They had just not contemplated
a situation where one of them would be incapable of taking decisions
for oneself or living independently. How does one prepare for such
situations?
One way is to write a letter of instructions which can serve as a
helpful guide for those who have to settle your affairs if you are
incapacitated or once you are gone.
A letter of instructions is an inventory of all your assets and their
whereabouts: the names and contact information of bankers, brokers,
attorneys who handle your assets; necessary information about all liquid
assets (including bank, demat accounts, retirement/investment details);
details of insurance coverage; location of legal and financial
documents such as bank statements, tax returns, birth and marriage
certificates, divorce and citizenship papers, titles and/or deeds for
any real estate properties; location of safe deposit lockers and their
keys; instructions for the care and placement of pets etc.
It can also include informal information regarding the dispersion of
assets, such as who would get a sentimental possession or heirloom (the
Will may state that these articles are to be distributed according to
the letter).
One can also add preferences about what happens to our digital footprint
with instructions about social media accounts. One can use the letter
of instructions to expand on one’s living Will, elaborating on the
medical conditions under which we would prefer to be taken off of life
support, in more detail than is permitted in a medical/ healthcare power
of attorney.
The letter provides valuable insight to anyone responsible for settling
your affairs or even executing your Will. Unlike a Will, this letter has
no legal authority but offers guidance to the executor of your Will and
to your family for things not covered by the Will. It allows you to
leave a final message for your family without the formality that comes
with a legal document.
The letter of instructions may also mention who can make financial
decisions for you in case you are physically /mentally incapacitated in
future. As per the legal terms, it would require the incapacity to be
certified by a doctor.
Only one nominee can be appointed in respect of bank-deposits and
lockers under sections 45ZA to 45ZF of the Banking Regulation Act, 1949.
Thus, under the current provisions it is not possible to have
successive nomination in a bank account. Successive nomination provides
auto-passing of nomination to the next nominee in case of death of the
first nominee. The situation arises when spouses of aged couples
nominate each other as nominees where, in case both of them die, the
legal heirs may have to go through a cumbersome procedure of getting a
succession certificate. A Will allows you to make more detailed
decisions, but in many jurisdictions which require a probate, the
process itself is slow, expensive and often harrowing.
After a year that has forced us to think about our mortality, people are
getting serious about writing their Will, as they re-assess their
lives, after the destabilising events of the pandemic. In such a
situation, letter of instructions and Will would play a key role.
Here are 36 most commonly asked questions and answers penned by Advocate Vimal Punmiya which will help you get all your facts in order while making your Will.
Having written a Will and a letter of instructions, a sensible thing to
do is to tell a close friend or family member or lawyer about where it
can be found. You should always tell someone you trust where your Will
is stored while you are still alive, as not doing so may even mean that
they might never find it.
Beneficiaries are often kept in dark about the Will contents and a list
of assets is often not readily available. The main reason for such
secrecy is that the testator might face hostile behaviour from aggrieved
legatees when he/she is alive. Parents are also hesitant to discuss/
disclose finances with their kids.
The other thing that people normally do is tell the family that they
have registered a Will and then people look it up after the person’s
death. Another option is to tell the family it is with the CA/lawyer (if
they have trusted people) - but not everyone trusts lawyers and CAs
since there are cases of them misusing the trust placed in them. So
Wills are always shrouded by secrecy and controversies. This is why
sometimes legatees produce fake Wills only to contest genuine Wills.
How to safeguard from this?
Sometimes the Will copy is not found at all. If a person dies without a
Will (or if a Will is not found), State law determines through a formula
what happens to the person's assets without considering the special
needs of any individual or family. Without a Will, surviving family
members may face unnecessary hardship at a difficult time and the
probability of nasty, long-drawn court battles over one's estate
increases.
While a Will does not need to be registered to be valid in India and can
be hand-written, it needs to be signed by the person in the presence of
two witnesses for it to be legal. Electronic copies of a Will, whether
stored online or otherwise are not valid in India. In India, you need to
have a physically signed copy of Will for it to be valid before a court
of law.
A new entrant to the market, Will & More
is offering an innovative digital solution to solve this problem. They
provide an online facility to register the location of your Will copy
(Let’s say locker no. 23, SBI Bank, Dadar, Mumbai) so that after your
death, your loved ones can easily locate the Will.
They also provide a facility to store a letter of instructions on their
portal. Advocate Joby Mathew, who is behind this new innovative idea
explained how the product works.
Mr Mathew said “Like all important documents that relate to your
property, your Will needs to be stored in a secure manner and at a
location that is accessible and known. The location of your Will could
be at a special place in your home, a bank locker, with a friend or with
a lawyer. Will & More allows you to register the location of your
Will securely and confidentially.
This offering is along the lines of Certainty - the National Will Register in the UK.
Will & More allows online payment and gives you a receipt number/
client ID, which you can store along with other valuables for future
references. You need to be specific in your description of the location
of your Will and describe its exact whereabouts. These remain
confidential and are not available even to the website or the law firm
behind it. An important advantage of this is that the information cannot
be used to collect data for hard-selling wealth management products or
legal services, as has happened with many free and easy online Will
services.
Clarifying further on the storage solution aspect, Mr Mathew explained,
“We use Amazon Web Services (AWS) servers to store the data which is
uploaded by clients; the data is stored in such a manner that even the
client does not have visibility; when new data such as Will location or
letter of instructions is uploaded, the earlier data is overwritten.
Upon a successful search, the Will location and letter of instructions
is sent out by the server to the email address of the nominee without
any manual intervention from our side except to validate the
circumstances (death or permanent disability) which trigger the email.
We will not be able to retrieve the data in case of loss of credentials.
(Users can however change passwords or generate a new one if the
earlier one is lost). The passwords are not stored in the system and
therefore, we will not be able to access the data”.
Will & More also offers 5 different do-it-yourself (DIY) Will
templates which can be downloaded and used to customise your own Will
starting at Rs1500.
The cost of registering the location of your Will and the letter of
instructions with Will & More would be Rs5500 to Rs 6500 for a
period of 5 years, which makes it rather expensive.
“The letter of instructions alone can be made available on a specific
request to the persons or nominees named, in the event of the registered
user’s incapacitation due to accidents, or debilitating illnesses like
Alzheimer’s or Parkinson’s disease, or any other condition that would
render a person of unsound mind, after submission of valid medical
documents/certificates and after due verification”, said Mr Mathew.
The location of your Will and the contents of your letter of
instructions are only released to nominees/ beneficiaries on providing a
copy of your death certificate and proof of identity. However, it also
charges a fairly stiff fee of Rs2,500 to search for the location of the
Will and letter of instructions on the portal.
Will & More aims to fulfil the gap in the Indian Will making and
storage practices and to promote a culture of leaving a letter of
instructions.
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