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.
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.
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.