Why you should make a will

The Google trend of search terms ‘death’, ‘making a will’ in India has shown a recent increase. The proportion of the elderly population is approximately 10% in India. With the property prices rising along with the need for inter-generational transfer, especially from the ‘Baby Boomer’ generation, people have a choice between making a will or division of property. Conflict among siblings that leads to civil court proceedings are not uncommon and a report suggests that pending property dispute cases in court may run in millions. This issue could be reduced by amicable division of property or through making a will.

Each individual has his own reason for making a will and deciding its timing. Some people may say they are old or diagnosed with a particular illness, or after their children start to live separately. Some people prefer to divide the property when they are around. After crossing 60 years of age, there is a sudden dip in income generation and even with financial planning, they may have to budget and balance their income and expenditure. Since longevity is increasing and healthcare costs rising, many of the elderly need to revise their financial planning, in comparison to the individuals from the previous generation.

A study by the Belgaum community medicine team estimated the prevalence of cognitive impairment is close to 9% in the urban elderly population. Therefore, the question does come up whether an older adult has the capacity to make a will, which is termed testamentary capacity. Ageing alone cannot be a criterion to suspect incompetence to make a will, as it will be discriminatory towards the elderly. Again, a likelihood or presence of a dementia diagnosis or any other neuropsychiatric condition on its own, does not make that person incapable of making a will but could indicate the need for assessment of their testamentary capacity.

Unable to manage their finances and a lack of awareness of their incapability to manage finances, can itself be one of the early features of dementia. There can be a risk of financial exploitation also.

Even in mild cognitive impairment, some researchers found discrete inability to manage finances. The capacity to manage finances and the capacity to make a will are two separate issues, and so must have assessments separately.

Knowledge of the extent of their property, understanding what making a will means, knowledge of potential legal beneficiaries and ability to foresee consequences after the execution of the contents of the will are some of the key core features examined, to see if the person has the testamentary capacity to make a will. The testator must not be under undue influence from anyone and is making the will voluntarily. Psychiatrists or neurologists may act on a request from an advocate to examine the testamentary capacity and could certify.

Senior Citizens could seek advice from a legal aid clinic in the outpatient campus of NIMHANS, Bangalore where advice is offered by lawyers representing the Karnataka State Legal Services Authority. If any senior citizen feels pressure from anyone, they could seek assistance from elder helplines either locally or if in Bangalore urban, by calling 1090.

The elderly mostly rely on their pension or savings. Making a will for the purpose of planning financial security for their spouse is also important. Succession will happen, as death is inevitable. In the midst of Covid, with worries over their own longevity, some senior citizens could be opting to make a will. There is always scope for minor amendments or changing the will later. The will comes into action only after death. One cannot make a will after found to have testamentary incapacity particularly due to an irreversible condition. It is best to seek consultation with a legal expert and proceed.

(The writer is a psychiatrist with expertise in Geriatric Psychiatry and Dementia)