WILL
To write or not write, that is the question. And how does one write it? Writing a will is essential, most people will advise you but the layperson is often at a loss as to how one goes about penning this document. Here are the answers to basic questions on making a will to preserving it, de-mystifying a daunting prospect for many.
| Q1: | What is a Will and what are the benefits of making one? |
| Ans. | A WILL is a written document in which you provide for:- |
| A. | The administration of your estate/assets when you die; and |
| B. | The distribution of your possession in specific proportions to specific people whom you wish to have a share of your estate/assets; |
| C. | Appoint a person or persons of your choice to administer your estate; and |
| D. | Appoint a guardian or guardians for your infant children (if any). In other words it is a document where you direct, who is to receive your property upon your death. If you have any real property (land) or personal property (cars, jewelry, money) that you want to give to a specific person, then you must have a Will. |
| Q2: | Should everybody working or non-working, man or woman make a Will? and what if you pass away without making a will? |
| Ans. | Where there’s a will, there’s a way… where there is no Will, there will probably be family bitterness/disputes… if people die without a Will, then the law will decided to who the property of the deceased person goes to. Every person whether working or non-working, man or woman should make a will. |
| Q3: | When should people make a Will? At what age, on an average? |
| Ans. | Every adult, no matter what age, should have a Will. Preferably, a person above 50 should have a Will. And while making a Will, a person must be of sound mind. |
| Q4: | What is the process of making a Will? What language does one write in? Do you need witnesses while making a Will? |
| Ans. | No prescribed from for a Will; it only needs to be signed and attested. |
| a | Can be in any language; no technical words need to be used |
| b | Two witnesses must attest a Will; one preferably a doctor |
| c | They should sign in the presence of each other and the person making the Will |
| d | In India, the registration of Wills is not compulsory |
| e | The Will should provide for the appointment of executors, though not mandatory |
| f | No stamp duty is required to be paid for executing a Will |
| Q5: | Where should one keep the will after writing it? Should somebody in the family/or friends know where this is kept? |
| Ans. | Keep the original in a safe place, where it may be found easily after your death. Leave a copy with the attorney who wrote it for you or with a copy with your family friend, CA or Advocate. |
| Q6: | Can a Will be verbal or does it have to be written? |
| Ans. | A Will has to be written but a verbal Will is permitted in the case of Defense Personnel. However, a verbal Will is not valid if you have a valid, written Will. if you have no written Will, a verbal Will can be valid with regard to any property you own, except land. Property that can be transferred under a verbal Will includes stocks, bonds, cars, coin collections, jewelry and appliances. A verbal Will is valid only if you know you are dying and say what you want in your Will to two competent, disinterested witnesses. The witnesses must put the Will in writing and sign the transcription within 10 days. |
| Q7: | We see lots of problems in families when the head of a family passes away without leaving a Will… |
| Ans. | If you die without leaving a valid legal Will, you are said to have died ‘Intestate’. The law dictates who will inherit your estate and in what proportion. The law also decides who will have responsibility for administering your estate (your personal representatives). Such a decision may create a dispute and some hurdles among family members. |
| Q8: | Should you keep the contents of a will secret? Or, can they be shared with people? |
| Ans. | It is advisable to keep the contents of a will secret. However, it is not necessary to keep it secret, it depends upon the person and varies from case to case. |
| Q9: | Can a husband and wife make a joint Will? |
| Ans. | No it is not possible to have a joint Will, there must be individual Wills. However ‘Mirror Wills’ are quite common. A ‘Mirror Will’ is when a spouse or partner make almost identical Wills, or even absolutely identical Wills, leaving for example, everything to each other respectively should one partner perish and if both perish together, then directly to the children. If they have no children, then to a named beneficiary. This is where major differences often occur say, for example, the husband could leaves his possessions and estate to his possessions and estate to her siblings! |
| Q10 | Supposing a person makes a Will leaving his/her assets and money not to the family but to an outsider or perhaps to a charity is this Will to be honored? |
| Ans. | Yes, basically a Will is a document that states or directs the Will of the person, as to whom he/she wants his/her property to be handled after their death. So, the person in whose name the assets are transferred can be any person, an outsider, or even a charitable trust. |
| Q11 | Wills are often contested by people. Can you enumerate three of the most common grounds on which they are contested? |
| Ans. | Yes, Wills are often contested by people. Some common grounds on which Wills are contested are: |
| a) | That the person was not of sound mind. |
| b) | The Testator lacked testamentary capacity to sign a will. |
| c) | The person was unduly influenced into singing a Will/a Will is made under pressure. |
| d) | The Will was procured fraudulently. |
| e) | The Will is not signed before two witnesses. |
| f) | The name of family members is not mentioned in the Will. |
| Q12 | Wills often result in bitterness in families and fragmentation maybe somebody thinks they have not quite got what they wanted or lesser than the other person… |
| Ans. | Yes, it might happen in various situations. To prevent such occurrences, it is advisable to consult a lawyer, to help you to draft the Will in a certain manner and give proper statements as to why only certain assets are given to a particular member, instead of others. |
| Q13 | Have there been cases in which a will has been deliberately tampered with? Or, when maybe mentally unsound people have been fooled into making Wills? |
| Ans. | There are very few cases where the Will has been deliberately tampered with or when the mentally unsound people have been fooled into making Wills. |
| Q14 | Can a person change a Will he has already made? |
| Ans. | You can change your Will any time you want to. However, make sure that when you make a new Will, you mention that this Will is the latest and supersedes all earlier Wills. If you don’t, it can complicate the situation, cause major confusion, make such matters go to the court of law and take several years before arriving at nay final verdict. You can also make additions to your Will by singing a ‘codicil’, with all the formalities of a Will. The codicil must be in writing, dated and signed by you and two witnesses. You cannot change a properly executed Will by writing revisions into the Will, even if you initial and date the changes. Such changes are valid only if they occur before the Will is signed and witnessed. If major changes are needed, consider making a new Will. |
| Q15 | What should be a person’s state of mind when they make a Will? |
| Ans. | A person should make a Will in a sound state of mind and should have the Will registered with the Registrar of Sub Assurances in the presence of two witnesses. The Registrar will also ask for Identity proof, Doctors Certificate, Residential proof of the person who makes the Will, Identity proof of witnesses- these expenses are very nominal. |
| Q16 | Should people take the help of a lawyer when making a Will or can they make it on their own? |
| Ans. | The procedure of making a Will is very simple, if asserts are few than the help of a lawyer is unnecessary, but in case the assets are many and the family is big, there is a possibility of disputes then it is advisable to take the help of the lawyer. As ‘Do-it-yourself’ Wills often do not contain all the necessary components as required by law and many times ruled as invalid by courts (for example no signatures from witness or no witness at all). Many a time it can happen that while creating the Will, you use such ambiguous language that it result in lengthy legal battles- “My House should go to Sunita.” Now, if both mother and wife are called Sunita, which Suntia ought to get it? Anyone who might benefit from the ambiguity of the will can jump in to claim a share! And if the courts decided in his/herfavor, you won’t like that situation (not that, you’ll be around!) |
| Q17 | Does marriage/entering into a civil partnership affect the Will? |
| Ans. | Yes, if you marry to enter into a civil partnership, your Will is revoked. This is because there is an assumption that you would wish to provide for your new spouse or civil partner. There is an exception to this rule if you have made your Will ‘in anticipation of’ marriage/entering a civil partnership. If you are in any doubt about this, consult your solicitor for advice. |
| Q18 | Does divorce/dissolution of civil partnership affect Wills? |
| Ans. | Yes, if you divorce or your civil partnership is dissolved, any Will you have made is revoked but only to the extent that your ex-spouse or ex-partner is referred to. For example, any appointment of your ex-spouse or ex-partner as an executor or beneficiary is revoked. However, your Will may still be valid and, again, should consult your solicitor for advice. |
| Q19 | Video Recording Of The Will To Protect Your Real Estate Succession |
| Ans. | Yes, your video recording of the Will would be unusual new and innovative concept which provides hassle free life and succession especially of your real estate investment. The Birla-Lodha episode and the problems arising through the Will of Late Mrs. Birla are still fresh in the minds of all those who are concerned with preparation of the Will. however, to ensure that in years to follow you face no hassles and tension in your family specially relating to succession of your assets and more particularly your real estate investments, then it is strongly recommended that you should go in for video recording of your Will. a question sometimes might crop up in your mind as to whether the video recording of your Will would it be legal and would find the acceptance before the Courts in case the matter goes in for litigation. There may be two views possible on this question but the fact remains that my experience for nearly 40 years in dealing with preparation of Will of a large number of top, famous and prominent personalities of India reveals that in most cases with no exceptions wherever there is a video recording of the Will, the succession planning comes with hassle free formalities and no matter has gone to the court. Thus to ensure peaceful and hassle free smooth succession of real estate investment particularly for your legal heirs, it is recommended that one should prepare a Will, register the Will with the Sub Registrar and then finally to go in for “Video Recording of the Will.” The next pertinent question is to how to get video recording of the Will. I would like to suggest to the readers what I generally do for my clients. The person preparing his Will, would keep the original Will in his hand, sit down calmly and coolly in his drawing room companied on both sides by two witnesses who are going to act as witnesses to the Will. Now, the video camera is on and recording is going on. And now the person making the Will reads out the entire Will which will be video recorded. Finally, the person preparing the Will will sign each page of the Will which will again be recorded and finally both the witnesses to be Will will also sign the Will and now video recording of the Will is completed. They would now proceed to go to the Office of the Sub Registrar and get the Will registered. Simple and easy procedure is the procedure of getting the video recording of the Will while expense-wise this procedure is not that costly in comparison to tons of big advantages with the negligible expenses. These days after video recording of the Will people have started preparation of CD or DVD of the video recorded Will. The extra copy of CD/DVD of the video recorded Will is then distributed to the executor of the Will as also to a small group of those persons on whom you have got full faith, confidence and regard them as well wishers of your family. This simple concept of video recording of the Will is comparatively new and innovative idea specially in India. In USA and other part of the world the video recording of the Will is already in operation for last over three decades. It is time for you now to think that the best option for preparation of the Will would be to prepare a Will, to register the same in the Office of the Sub Registrar and finally to go in for video recording of the Will. Your video recording of the Will will provide you immense peace, satisfaction and would try to give you a sense of satisfaction that the succession planning is yet going to be a smooth affair in years to come. |
SUCCESSION
The rights and obligations of the deceased person get transferred to the living person under the process of succession. They pass to some person, whom the dead or the law on his behalf, has appointed to represent him in the world of living.
Succession depends on:-
(a) The law applicable to the deceased at the time of his/her death.
(b) The machinery of succession, whether
(i) Testamentary under Will of the deceased, or
(ii) Intestate, in the absence of valid Will, or
(iii) Operation of law, by nomination, transmission,
(c) The nature of property or rights and obligations held by the deceased at the time of death.
Person dying intestate:-
If a person dies without making a ‘Will’, he is said to have died intestate and in such case his property will be inherited by his heirs in accordance with law of succession and in case a person dies leaving behind Will his property shall be distributed as per the terms of the ‘Will’ which is known as ‘Testamentary Succession’ means succession to a property of the deceased in accordance with the provisions in the last Will and Codicil of the deceased.
WILL:-
1) Will’ means a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death—Section 2(h) of Indian Succession Act, 1925. ‘Will’ as including Codicil and every writing, making a voluntary posthumous disposition of the property—Section 3(64) of General Clauses Act, 1987.
2) Codicil’ means an instrument made in relation to Will and explaining, altering or adding to its dispositions and is deemed to form part of the Will—Section 2(d) of Indian Succession Act,1925.
3) Essential Characteristics of Will are:-
(a) The document must be in in accordance with the requirements laid down under section 63 of Indian Succession Act, 1925; i.e. executed by a person competent to make the Will and attested as required under the Act.
(b) The declaration should relate to the properties of the testator; which he wishes to bequeath.
(c) The declaration must be to the effect that it operates after the death of Testator and is revocable during his lifetime.
(d) After the Indian Succession Act,1925, Wills (except made by Mohammedans) should be made in writing.
Probate:- Probate is a certificate granted under the seal of Competent Court, certifying the Will as the Will of the testator and granting the administration of the estate of the deceased in accordance with that Will to the executor named under the Will. No right as executor or legatee can be established in any Court of justice, unless a court of competent jurisdiction has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with the copy of an authenticate copy of the Will annexed.
As per the Section 213 of Indian Succession Act, probate is necessary:-
(a) To all Wills and Codicils made by any Hindu, Buddhists, Sikh or Jain, on or after 1-9-1870, within the territories of the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay (Section 57).
(b) To all such Wills and Codicils made outside those territories and limits so far as they relate to immovable property situate within those territories of limits (Section 57);
Letters of Administration:- A letter from administration can be obtained from the Court of competent jurisdiction in cases where the testator has failed to appoint an executor under a Will refuses to act or where he has died before or after proving the Will but before administration of the estate. Letters of Administration are not always necessary in cases of intestacy of Hindus, Mohammedans, Buddhists, Sikhs, Jains, Indian Christians or Parsis. Letter of Administration are always necessary where a person (governed by the Indian Succession Act) dies intestate.
Succession Certificate:- In case, where grant of Probate or Letters of Administration (only if immovable property is involved) is not compulsory. Succession Certificate can be granted by the Court with respect to any ‘debt’ or ‘security’ to which a right is required to be established by Letters of Administration or Probate and for this purpose ‘security’ means Government Securities, shares, stocks and debentures in companies and incorporated institutions, debentures or securities issued by or on behalf of local authorities and any other security which the State Government may notify.Release Deed duly registered by all other legal heirs:- If the nominee or the legal heirs find it difficult to bring any letter of administration, succession certificate or probate, if there is Will, at least the societies should insist on “Release Deed” to be executed and registered in favor of the nominee or a particular legal heirs to admit such legal heirs as the proper owner.