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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
Legal Article

MAKING YOUR WILL YOURSELF

H.L. Kumar

No one wants to die. Even people who want to go to heaven don't want to die to get there. And yet death is the destination we all share. No one has ever escaped it. And that is as it should be, because Death is very likely the single best invention of Life. It is life's change agent. It clears out the old to make way for the new. Guru Nanak said : "Kis naal keejey dosti sab jag challan-haar" (Who should be held dear? The whole world is transitory). Yet even a nonagenarian at the last gap will grumble that it is not the time to leave the world.

The inexorable law of nature is that one who is born must die. So, the inevitability of death is never in doubt, the only uncertainty is when, where and how. When Dharmaraj Yudhishthir and his four brothers and their wife were thirsty, he asked his brothers to fetch water from the yonder pond. They went one by one to bring water but none of them returned. Then the anxious Yudhishthir himself went there but he was also stopped by Yaksha, who told him that he could get water only on the condition that he would have to give satisfactory answers to the questions asked by him. In all he asked some ten questions but the most important of them all was "What is the biggest wonder of the Mrityulok ?

Yudhishthir's reply is a celebrated one: "Every day we see creatures die, yet every one of us seeks to live forever. This mentality of general human being cannot be changed." What can, however, be avoided is that by a modicum of intelligence the war of Mahabharata among successors after one's death.  Ironically, the most certain thing in one's life comes at the very end of it - the certain call, the death. But life still goes on and beyond. And the dead lives among the alive in their memories that he leaves behind besides other things. There cannot be a dispute regarding the fond memories, for they can be shared without dispute but the 'other material things' most of the time become a bone of bitter contention. This is where enters the Will. Will is a legal document containing the desire of the dead regarding his/her 'other material things' - his property. A Will goes a long way in precluding the probability of all possible disputes that might arise after the death of the testator among his/her legal heirs.

It is indeed intriguing that even the advocates who fight in the courts for the inheritance rights, often do not write any Will. It has also been observed that those fighting for the properties, seldom adopt the clean method of writing a Will. The method of making a hassle-free Will is simple and easy.

An example will prove the point. The entire nation watched as the Ambani brothers split their father's wealth. While speculation continues about what went wrong, there is no denying the fact that the late Dhirubhai Ambani would have done well to leave a Will.  

With soaring prices of immovable properties, the question of how to divide wealth, especially if it involves property, could cause major dispute.

This is not to suggest that everyone should necessarily pay for an expert lawyer or wealth manager to write up a Will. You can always make your own Will, as long as you are clear about what your are doing. Even registration of a Will is not compulsory, though it does give authenticity. However, if some changes are made in the future, the updated Will needs to be registered again so the first one isn't considered as the last valid Will. A Will remains the most popular method of passing on property and wealth in India.

If you die intestate (that is without making a Will), your family will have to follow certain 'laws of succession', in deciding how to split your assets. It is a misconception to believe that all the estate automatically passes on to the spouse. Children and relatives can also stake claim to the property. Laws of inheritance and succession are diverse and complicated. This kind of division of assets is an expensive business as your family would have to hire the services of a lawyer and all the costs will be incurred out of your estate. So in effect, your family will get a diminished share.

The process of making a Will is very simple. It requires no stamp duty or even non-judicial stamp paper; although most experts advice that a Will must be registered, so that it is in safe custody. However, there are certain traps that you should watch out for. One common mistake that people make is failing to appoint witnesses and trustworthy executors younger than themselves. In case of Hindus, another common mistake is the failure to state if the property is inherited or not. The question of inheritance becomes important because no ancestral property can be assigned to any person. All rights on inherited property are acquired by birth. If there is no Will, the property will devolve according to the personal law of the deceased.

Under section 2(h) of the Indian Succession Act, 1925 a Will is a legal declaration of the intention of a testator, who makes the Will, with respect to that person's property, to be carried into effect after the death of the testator. The provisions of this Act govern Wills in the case of Hindus, Sikhs, Jains, Buddhists and Christians. For Muslims, the Muslim Personal Law typically governs the Wills.

In a Will, you can also provide for specific bequests of your property, such as jewellery, antiques or family heirlooms, to certain individuals or charities. If you die intestate, the court will decide to whom your precious property be distributed. The main reason for making a Will is to say who you want to receive your property and who you want to raise your children if something fatal happens to you. If you do not own property and you do not have minor children, you may still want to make a Last Will in case you have property or children in the future.

Also, if you have unique desires or wishes, you may want to make a Last Will and Testament and state your wishes and desires in it. Some desires, such as wanting to be cremated in a certain way, have a certain type of funeral, or being buried in a certain place can be stated in your Last Will. It is possible, your funeral may take place before your Last Will and Testament is read. Therefore, it is best to tell your family and/or close friends of your desires and also state them in your Last Will.

Precautions for making a Will

. A Will must be signed by the Testator in the presence of at least two witnesses who have to attest the same. The full names and addresses of the witnesses should be clearly indicated in the Will. It would be better if one of the witnesses is a medical practitioner, but this is not essential. The practitioner should certify that the Testator is of sound mind (especially if the Testator is of an advanced age) and he or she should also note his or her registration number and degree (educational qualification). A witness should not be a beneficiary of the Will. A witness should also not be an Executor of the Will. Also, the witnesses should be younger in age.

. A Will can be hand-written or typed out. No stamp paper is necessary.

. It is better to make a Will at a younger age but not below 18 years. As and when events, environments or changes in the family necessitate changes, the Will can be changed. One of the advantages of making a Will at an earlier age is that it can prevent unscrupulous relatives from contesting the legality of the Will made by a very old person on the basis that the person was not of sound mind when the Will was made.

. A Will must always be dated. If more than one Will is made then the one having the latest date will nullify all other Wills. In fact, it would be better to make a statement nullifying all other Wills.

. A Will should be simple, precise and clear otherwise there may be problems for the legal heirs. Sometimes, relatives and others may try to distort the interpretation of the Will for their own benefit. It is always better to take the advice of a trusted advocate.

. There should be an Executor of the Will who would be entrusted with the responsibility of ensuring that the assets are distributed according to the provisions of the Will. Sometimes more than one Executor may be required to execute the Will. The Testator should take prior consent of the person whom he or she wishes to name as the Executor.

. Each page of the Will should be serially numbered and signed by the Testator and the Witnesses. This is to prevent substitution, replacement or insertion of a page or pages by persons with fraudulent intentions. At the end of the Will, the Testator can indicate the total number of pages in the Will. Corrections, if any, should be countersigned.

. The Will may be kept in a safe place like a bank vault. The Executor and the beneficiaries should be informed where the Will is kept. It is advisable to keep a signed copy of the Will with a trusted advocate. Duplicate copies of the Will may be made, signed by the Testator and the Witnesses and kept at separate places so that if one is misplaced, the other may be used.

. Sometimes the value of certain items of the assets ( eg: value of share certificates) may fluctuate. In such a situation, it is better to mention the percentage of such item/s which should go to each beneficiary.

. Whenever changes in the family circumstances or other reasons necessitate any change in the Will in the intervening period (from the time of making the Will to the time of demise of the Testator), the structure of the Will can be amended. Even if there are changes in the nature of the property or assets, an amendment can be made.

. It is not compulsory for one to register a Will with the Registering Authority, but in case any property or asset is given to any charitable Organization, then registration should be done.

. A person's Will becomes operative only after his or her demise. There is no restriction in the way a person can deal with his or her property even after writing the Will.

. A Will can be in any language; no technical words need to be used.

Registration of Will

Also, whenever the Testator bequeaths the immoveable property(ies), it is desirable that the Will must be registered with the Registrar since the concerned authorities do not mutate the ownership of immoveable property in favour of the beneficiary(ies). For instance, the Municipal Corporation of Delhi, in its Circular No.Tax/HQ/A&C/2011/567, dated 8-8-2011 reiterated its earlier circular dated 11-8-2010 dealing with mutation procedure in case of unregistered Will stating that "in case of unregistered Will, the beneficiaries must be asked to obtain Succession Certificate/Probate from a competent Civil Court." Obtaining probate is not only cumbersome but also an expensive process whereas the procedure for registration of a Will is simple and the registration fee is nominal.

Some Common Questions and Clarifications

Can a person make an oral Will?

Only Muslims and soldiers can make oral Wills. Soldiers in the army and on duty can make such Wills and they need not be attested by witnesses. These are known as Privileged Wills.

Is attestation of Will compulsory?

Attestation of a Will is mandatory. At least two witnesses should attest a Will. "Attested" in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses, each of whom has seen the executant sign or affix his mark to the instrument. In other words, the witnesses, who sign as witness, should see the person signing the Will in their presence and each of them signing in the presence of each other and in the presence of the testator, who declared the instrument as his Will.

Whether the video film will uphold the authenticity of a Will?

In the field of evidence, the video film has brought about a revolutionary change. If a video film is made, it will be a foolproof evidence and will minimize the disputes provided that it is handled and used properly. The claims and counter-claims can be settled with the help of video films without much hassle. However, abundant care and caution must be taken to ensure that video films are not doctored to twist and turn the proof in favour of interested parties.

The writer is the author of 'Make Your Will Yourself'
e-mail : hlkumar@vmail.com

 
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