Wills and Inheritance
Wills and Inheritance
A will is a written declaration that constitutes a legal document and regulates the distribution of a person’s property after death.
A will gives a person the power to distribute their estate as they choose, reducing the likelihood of disputes and conflicts after their passing.
The Inheritance Law, 1965 recognizes several types of wills:
• Handwritten Will: Written entirely by the testator, signed in their handwriting, and dated in their handwriting (Section 19 of the Inheritance Law).
• Will Before Witnesses: Made in writing, dated, and signed by the testator before two witnesses. According to Section 20, the testator must declare before the witnesses that this is their will, and the witnesses must sign at the same time to confirm they witnessed its execution. The will may be handwritten or typed, but signatures must be handwritten and contemporaneous. It is recommended that at least one witness be a lawyer specializing in wills to avoid errors that could invalidate the will.
• Will Before Authority: Under Section 22, a will may be declared orally or submitted in writing before a judge, inheritance registrar, member of a religious court, or notary. If oral, it is read back to the testator, followed by a declaration, signature, and confirmation of the date and execution.
• Oral Will or Deathbed Will: Under Section 23, this is permitted only when the testator is on the verge of death or believes themselves to be in such a situation. It must be made before two witnesses who understand the testator’s language, recorded in a memorandum including the instructions, date, and circumstances, and deposited with the inheritance registrar. An oral will becomes void after one month if the circumstances justifying it have passed and the testator remains alive.
When is it advisable to make a will?
A will is the safest way to ensure distribution of an estate according to the testator’s wishes. Examples include:
• When the testator wishes to leave specific parts of the estate to relatives, non-relatives, or organizations, contrary to the default provisions of the Inheritance Law.
• When there is a need to regulate usage rights in property after death.
• Divorced or separated couples, or single-parent families (not fully covered by the Inheritance Law).
• Couples in second marriages, each with children of their own.
• Elderly couples without children.
• Common-law partners, to prevent disputes regarding the surviving partner’s status.
Without a will, the estate is divided among heirs according to the Inheritance Law. With a will, the testator can direct distribution according to personal wishes.
It is crucial to choose an experienced lawyer who understands the complexities of testator-heir relationships, asset types, and proper drafting. Errors in drafting may invalidate the will and cause distress and conflict.
Mutual Will
A mutual will is a will made by spouses to bequeath their estate to each other and subsequently to third parties.
If one spouse wishes to change a mutual will, such change has no effect unless written notice is given to the other spouse beforehand. This allows both spouses the opportunity to draft new wills.
If one spouse wishes to change the mutual will after the other has passed away, they may do so only if they do not inherit under the mutual will. If the surviving spouse has inherited under the mutual will, they must first renounce the inheritance entirely or return what they received to the estate before drafting a new will.
Inheritance Without a Will
If no will is made, the Inheritance Law defines the order of heirs.
By default, the estate is divided equally between the surviving spouse and the deceased’s children. The spouse receives half, and the children share the other half equally. In addition, the spouse inherits the household movables and the family car, if any. A widow is entitled to her ketubah and any supplements, and in certain circumstances may claim maintenance from the estate.
We recommend drafting a will to ensure distribution according to the testator’s wishes and to prevent family or other disputes.
Depositing a Will
After drafting a will, it is advisable to deposit it with the Inheritance Registrar. This ensures that after death, no inheritance order or probate order is issued that ignores the will.
The testator may change their will at any time (except in the case of a mutual will, which requires notifying the spouse first). To do so, the previous will must be revoked, withdrawn from the registrar, and replaced with a new will.
Our firm provides legal advice and services in all matters relating to wills and inheritance.
