Thursday, February 15, 2018

How to make a Will ?




(The laws of inheritance are complex depending on religion and customs. The discussion in the present blog is confined to Hindus, Jains, Buddhists and Sikhs.)

Glossary:

Testator: The person who makes the will.

Estate: The assets left by a deceased person after the death. Assets include tangible and intangible assets less the liabilities, if any.
Codicil : A document made by the testator in connection to a Will; explaining, altering, deleting or adding one or more clause in of the will. Codicil is to be made by the testator in the manner a valid will is made.

Executor: A person OR AN ORGANISATION named in the will by the Testator to carry out the directions for distribution of the estate.

Beneficiary:
A person OR AN ORGANISATION who is named in the will to receive the bequest made by the testator.

Probate: A copy of the will certified by the court certifying the validity of the Will and confirming the powers of the executors. This also confers the rights of the beneficiaries.

Letter of Administration: If the testator has not named any executor, the court will appoint a one and the appointee will be give an authority called Letter of Administration to distribute the estate of the testator as directed in the will.

What is a Will?                      

As defined in (Section 2 (h) of Indian Succession Act 1925:

will is the legal declaration of the intention of its maker as to how his /her assets are to be disposed of after his/her death.

Will is also known as Testament or Will and Testament.

The maker of a will is known as testator and the person/organisation in whose favour the asset/interest devolves is called beneficiary. A beneficiary can be any person/organisation irrespective of relationship.

Why making a will is important:

A will defines who will get how much from testator’s assets after his/her death. Will is a popular theme in soap operas and films wherein, dear ones are found engaged in acrimonious litigation for property after the demise of a relative. Reel life story is no different from real life story, particularly when relation weakens and plot thickens. 

A properly drawn will would obviate such a situation and friction amongst the heirs. Though a will can be challenged in the court on various ground, there is very rare chance of acceding, by the court, to the prayer of the aggrieved parties if a will is properly drawn. This fact deters the beneficiaries/aggrieved parties from resorting to litigation. Apart from legal aspects and amicable division of the assets, a will is an important document to reward the person (irrespective of the relationship) who has supported the testator or support an organisation whose cause the testator values and wishes to patronize. 

If the deceased person has not made a will, his/her assets will be divided as per the inheritance laws as applicable to him/her which may not distribute the estate as per his/her wishes or as per the deservingness of an heir in context of fulfillment of duties, as an heir, towards the testator. Will is a sound dispensation for addressing some of the stark realities of life, particularly, during the fag end of life and more so in “modern” society.

Types of Will:

There are various types of will, most prevalent being Unprivileged Will written by any person other than a soldier, a sailor or an airman engaged in war or expedition (they can write Privileged Will which need not be signed by the testator when the will is written in the presence of, and signed by two witnesses). As such, practically most of the individuals are covered under Unprivileged Will. The present write up focuses on Unprivileged Will.

Who can make Will?

ü  Any person who is of sound mind to comprehend the implications of what  he/she is doing  and over 18 years of age can make a will.

ü  A deaf or a dumb or a blind person can also make a will.

ü  A married woman can make a will of the assets which she can alienate in her own right.

ü  A person of unsound mind can make a will during the period when he is capable to consistently comprehend the implications of what he/she is doing.

When should you make Will?

You can make Will at any age when you are legally competent to make a will. It is well said that life is quite unpredictable and it is more so when one is in later stage of life. This implies that, more the age, greater the need to make a will.

When should the Will be altered/changed/amended/revoked?

Will can be altered/changed/amended/revoked at any time by the testator while  he/she is alive.

In order to prevent litigation, though cannot be ruled out totally, it is desirable to change the will on happening of one or more of the following  events :

ü  Birth of a child in the family
ü  Death in the family
ü  Very High growth/decrease in assets
ü  Divorce
ü  Marriage (though as per Section 57 of Indian Succession Act, a marriage per se does not revoke the will in case of Hindus, Jains, Buddhists and Sikhs.).

Refusal of accepting the bequest by the beneficiary:

If any of the beneficiaries named in the will declines to accept his/her bequest, the bequest will be distributed as per the inheritance law as applicable to the testator. If the testator envisages such a situation and wishes to keep his asset beyond the provision of inheritance laws, he/she has to name a beneficiary who will get the bequest of the beneficiary who declines to accept the same.

Important ingredients of a Will:

A will attracts least of the legal technicalities of a legal instrument at the stage of making it. Law does not stipulate any specific format of a Will. However, following are the core features a will:

1. Though law does not stipulate but for practical purpose, the document may be titled "Last will and testament" or "Last will". The identity of the maker: Full name, age, religion, residential address
1.1 A statement to the effect that the will is being made with sound mind, of own volition and with full understanding; without any undue pressure or undue influence of any person.
2. A statement to the effect that the present will is the last and the only will and previous will stands cancelled.
3. The identity of each beneficiary in whose favour any or all bequeath is made
4. Full details of the bequeath made in order to avoid any confusion, at the time of distribution by the executor, in identifying the bequeath, e.g., in the case of –
Ø  Property: Popular name if any, Location, Property number as stated in the Govt Records, Area, common description of property or description of the adjacent property on each direction, etc.
Ø  Bank deposits: Bank name, Branch, A/c Type, A/c Number, etc.
Ø  Cash: Amount in figures and words
Ø  In case of chattels and personal effects: full description of the items
5. Place and Date of signing the will by the maker. Date is very important part of the instrument.
5.1. Signature / Thumb Impression of the maker at the end of will and also similar signature on each page of the will, in the presence of two witnesses
6. Two witnesses to attest (sign) to the effect that the above signature is put in their presence. Full name and addresses to be noted under their signature.

Other important aspects of making a will:

1. Will does not attract any Stamp Duty. It can be made on simple plain paper. One does not need even a ledger (pista colour) paper. It may be typed or handwritten. It can be in any language generally used but it is desirable that it should be in the language which can be comprehended by the testator.

2. Will takes effect only after the death of the testator.

3. Will can be registered with Sub Registrar Office (SRO). This would give more credibility as to the genuineness of the will but bear in mind that still it can be challenged in the court. Will can also be registered after the death of the testator. 

4. It is desirable, of course not required by law, that witnesses are younger than the maker so that in the eventuality of litigation they can depose and support the process of law as it is expected that a younger witness might outlive the testator.

5. Testator can bequeath self acquired assets in the manner he likes. In case of inherited and ancestral property, rights of the testator to bequeath are bit restricted.

6. Testator can exclude any heir from bequeath. It is desirable to give explanation in the will for the same to avoid any litigation on this point.

7. Nomination (e.g. in Bank A/c) does not make the nominee sole owner of the claim received. Nominee is bound to distribute the amount claimed to the legal heirs. If you wish to make him/her (nominee) the sole owner of the claim which might be received in future, bequeath such asset in the will to the nominee. 

 8. Bequeath can be conditional, provided such condition is not illegal/ immoral/ impossible to comply with by the beneficiary.

9. Will, Registered or otherwise, can be amended / altered/ cancelled at any time by the testator during his/her life time. For this purpose, a document called “codicil” is prepared, dated, signed and witnessed by two witnesses.

10. If the Will is registered and afterwards another will is prepared, the later will would prevail, even though it is not registered.

11. Prepare the will carefully with clear wording so that no chance is left for any ambiguity or contradiction. 

12. Though not stipulated by law, it is desirable to name, two Executors with an explicit direction that if the executor named first fails to act, the latter executor will execute the will (which involves obtaining probate and distribution of the estate of the testator). Professional organization/bank undertaking the business of execution of will can also be named as executor. 

If the Executor is not named in the will, Court will appoint one. It is desirable that the Executors are neutral and educated persons, preferably younger than the testator. It is desirable to obtain verbal consent of the executors so that little chance is left for disowning their responsibility when the occasion arises. Testator can provide in the will for remuneration to the executor for the time and energy to be spent by him/her. If no provision is made, no remuneration can be claimed. However, an executor is free to opt out in any case.

12. No one (including the witness) except the Testator is required to know the content of the will.

13. Keep the will in a sealed cover and inform a trustworthy person where it is kept. It can be deposited with a bank with a nomination facility.

14. Care must be taken to bequeath all the assets to obviate any litigation for any left out asset not bequeathed. This may happen in the case of:
- an asset might have been left out inadvertently through oversight
- an asset may come to notice/traced after testator’s death
- an asset may devolve or accrue after the date of the will or death of the testator.
In order to obviate such an eventuality, it is desirable to add “residuary clause”- a clause to the effect that “my remaining assets, if any, are left to (name of the beneficiary) or a clause to that effect.

15. No Power of Attorney can be appointed to make a will on behalf of the person donating the power.

Disclaimer: The write up involves ticklish legal issues. This public forum aims to create general awareness amongst the readers and is not a substitute of the professional advice. The writer nor his employer accepts any liability for any person’s act or omission on the basis of what has been stated hereinabove.
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