THINGS TO REMEMBER WHILE MAKING A WILL

things to remember while making a will

It’s a myth that making a will is the right of only the rich. Any adult who wants to ensure a fair & just distribution of his assets can write a will. The assets could include property, gold, financial investments, art and artefacts, even hard cash lying at home.

Every individual should write a will so that his/her heirs do not face difficulties in accessing what is rightfully theirs.

Some guidelines for making the Will

A Will need not always be on a stamp paper or be registered. It can be made even on a plain paper, and it can still be as legally valid as one made under a lawyer or supervision.

However, it is vital that the Will must identify the person preparing it as the ‘testator’. A testator is a person who is making the will.

While making a will, one must list out his/her assets and lay a blueprint of how to allocate the assets to the heirs.

It doesn’t matter if the will is typed or handwritten, all that matters is that it be signed by the testator, attested by two witnesses and be legible. It’s crucial to choose the witnesses carefully – they must be reliable. They should also be preferably younger than the testator to ensure that they are around when the will is being executed. Then it becomes an entirely valid and legitimate document for every practical purpose.

Hence making a will can be a do-it-yourself exercise for most people. However, if the assets and ownership of the property is a little complex, then one must take legal and professional help to draft the will.

Legal and professional help would ensure that there is no ambiguity and loopholes in the will that may lead to misunderstandings or disputes in future. Also, the distribution will be as per the law. It is recommended that in case the testator is old and frail, then he/she should avoid making the will him/herself and get it typed to prevent disputes among the beneficiaries.

It is important to know here that a will cannot override the natural succession of inherited/ancestral property/wealth. This means a testator cannot remove a natural heir from the inherited property.

How do you ensure that Will is free of loopholes?

To assure that your will is impeccable, follow the following instructions:

  • Personal Details to be given while making a will

The testator’s name, personal details, fathers name and residential address should be explicitly stated. The date is crucial, mainly if the latest Will succeeds those made earlier and it must be mentioned in figures to rule out any fudging.

  • Verify free will

Verifying free will helps to declare upfront that the testator was not under any compulsion or influence while making the will. The witnesses must also attest this at the end of the will.

  • Attach executor’s details with the will

The executor of the will is the backbone of the entire process. Mention his/her name, your relationship with that person and the address to avoid misrepresentation.

  • State complete Details of All the Assets

Mention complete information about the immovable property mentioned in the Will. State the entire bank accounts details, and attach the relevant deposits, lockers and insurance policies papers with the will.

  • Identify the beneficiaries clearly

The name and address of the beneficiaries should be mentioned clearly.

  • Give details of Mutual Funds Collectibles

While willing mutual fund investments, give the folio number though individual scheme names need not be named. Also, the collectables and artefacts being willed should be clearly defined.

  • Cover Other Assets

Include any other asset you may have left out inadvertently while enumerating your net wealth.

Under what circumstances can a testator review his/her Will?

You should consider changing your will if:-

  • You or any of the beneficiary mentioned in the will changes his or her name.
  • there is a change in circumstances, and you want to eliminate a beneficiary or add a new one in the will.
  • you sell any of the property mentioned in the will or acquire new ones.
  • the executor of the will dies or is declared unfit due to old age or ill health.
  • a beneficiary mentioned in the will dies.

What Happens When A Woman Dies Without Leaving A Will

Dies Without Leaving A Will

The patriarchal roots have dug deep into the minds of the legislators in India, and section 15 and 16 of the Hindu Succession Act, 1956 is a testimony to that thought process. The socio-economic changes have positioned women in a position at par with men, but the patriarchy infested sections are still to evolve.  The general rules of succession are described in section 15 of Hindu Succession Act and has specified the manner in which the property of a female should be inherited if she dies intestate. The property of the woman who has died intestate is aimed at returning it back to the source.

In case of a Hindu Female

The property of a Hindu female under the Hindu Succession Act has been divided into three categories, viz. property inherited by a female from her father or mother, property inherited from her husband or father-in-law and the third kind, the properties which are not governed by the first two categories.

Under sec 15 read along with sec 16 of the Hindu Succession Act, the general rule for the succession of all classes of the properties is that it will pass on to the children (or if children predeceased the female, to the predeceased children’s children) and the husband. However, in case there is no one in existence from the above at the time when succession opens, the first kind of property will be inherited by the heirs of her father and the second by the heirs of her husband.

If the property is self-acquired then, it shall divest according to Section 15(1) of Hindu Succession Act. The specific order would begin from the sons and daughters and the husband. Then, it would go on to the heirs of the husband, subsequently to the parents of the female and the heirs of the father. And, lastly upon the heirs of the father.

The 207th Law Commission Report also addresses the issue further. The legislators when drafting the section were unable to fathom a situation of self-acquired property for a female. Hence, the lacunae in the law. There are a plethora of judgements by the Supreme Court regarding the notion of gender inequality in the current situation. But there has been certain development in this regard when females were allowed to become a coparcener and a Karta of a Hindu undivided family. Hence, we can applaud the judiciary for the recent judgements, but we have a long way to go to promote gender inequality.

Judgements

Lachman Singh vs Kirpa Singh & Others  (1987 AIR 1616)- Supreme Court affirmed the legislative intent of section 15 and 16 of Hindu Succession Act, section 15 of the Act arises for consideration only when a female Hindu dies without leaving behind a will and without leaving behind her any son or daughter (including the children of any predeceased son or daughter) and in that event any property inherited by her from her father or mother shall devolve not upon the other heirs referred to in sub-section (1) of section 15 of the Act in the order specified therein but upon the heirs of the father and any property inherited by her from her husband or from her father-in-law shall devolve not upon the other heirs referred to in sub-section (1) of section 15 in the order specified therein, but upon the heirs of the husband, Rule 1 of section 16 provides that among the heirs specified in sub-section (1) of section 15 those in one entry shah be preferred to those in the succeeding entry and those included in the same entry shall take simultaneously. It is not necessary to refer to rule (2) and Rule (3) of section 16 of the Act for purposes of this ease.

Challenging A Will in the court of law

Challenging a will in the court

A person who makes a Will (the testator) can decide to leave their assets to whomever they wish when they die. It is typically very difficult to challenge a will.

In Savithri and others Vs. Karthyayani Amma and others, the Honourable Apex Court held that the natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstances.

The validity of that Will can be challenged on any of the following grounds: –

Lack of due execution: – A Will must be in writing and signed by the testator (or signed by someone else in the testator’s presence and as instructed by the testator) in the presence of two witnesses, who must also sign the Will in the presence of the testator.

Lack of testamentary intention/capacity: – The testator has to be capable at the time that the Will was executed of deciding to make a Will and deciding to leave his assets in the way set out in the Will. If he was unable to make those decisions for himself because of an impairment of or disturbance in the functioning in his mind or brain (whether because of mental illness or under the influence of alcohol, drugs or medication) he would not have had sufficient capacity to make a valid Will. More specifically, the person must understand:

  • The extent and value of the property;
  • Who he or she is expected to provide for and who the beneficiaries of the will are;
  • The disposition he or she is making and what a will means; and
  • How these elements relate in order to form a distribution of property.

Undue Influence, Fraud, Mistake, or Other Factors: – A challenge of undue influence means the decedent did not make the will of free choice, but solely due to the improper influence of another person. This usually involves someone manipulating a vulnerable person into leaving all or much of the property to the manipulator.

A will can be challenged for fraud, such as when pages have been inserted after the decedent signed the will or the decedent’s signature is forged. If the will was not executed properly, with only one witness signature when two are required, for example, the will can be challenged as invalid.

In Jaswant Kaur Vs. Amrit Kaur and others the Apex Court held that a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will.

Nomination is not a WILL

Nomination-is-not-a-WILL

If you die intestate (without leaving a WILL document), The Natural law of succession will prevail

The Court in present case once again had to decide between Morality and Law and settled that law prevails. The matter before the court was in relation to Relinquishment of Succession Right when Heirs have separated themselves from Deceased for a long time. The Court had to decide whether Absence of the Will still attracts Hindu Succession Act when Heirs had distanced themselves from the life of Deceased for more than 35 years. The situation became more complicated since deceased considered someone else as her nominee.

In the above-mentioned case, the facts are as follows:

  • A woman was living separately from her Husband and Daughter from past 35 Years and died Intestate.
  • From 35 years, the deceased was living with her sister.
  • Deceased was a Central Government Employee and has selected her sister as her nominee.
  • A succession Certificate issued in favor of Husband and Daughter of Deceased.
  • Sister of Deceased appealed against the above order on the ground that Nomination marked her as the owner.
  • Court relying on settled position of Nomination not amounting to Will stated that in absence of Will irrespective of relationship between deceased and heirs, the property still delves into legal heirs as per Hindu Succession Act in case of Intestate Deaths.

The court in this matter settled the following points

  • Nomination does not itself amounts to a Will or marks nominee as an owner.
  • Irrespective of the relation between Parties, provisions of Hindu Succession Act prevails in absence of Will.

Conclusion

The court in its opinion stated that the prevalence of law since distance does not amounts to Breakage of relationship and can even be there because of various other reasons as Employment. Moreover Nomination in Official Records sometime is done as a token of affection and love rather than with the purpose of making someone as a legal heir.

Read Full Judgement

Stay Safe-Know more about Making a Will

will

The death of loved ones brings in pain and sorrow, but when one has to also sort out emotionally draining, mentally harassing legal issues that too related to the making of a Will document by the person gone from the world. When Riya Sen lost her father, calling up people to confirm about the property was the last thing on her mind, so she was dumbfounded when she heard from neighbours back home in Calcutta that their family home had been occupied by some people claiming to be relatives.

While Riya had been thinking of getting her father’s property transferred in her name, it got delayed. And now she found herself in a situation where she had to fight the issue of a false Will. The relatives claimed they had a Will document made by her father, declaring the assets to be in their name.

The importance of the Will is often not fully understood –especially in a country like India where it is sometimes almost considered inauspicious to talk about a document related to one’s death. However, people would be doing their family a favour if they realized that making a Will document leaves the family in a better situation.

In an earlier blog, we had shared basic information about the Will document. There are terms that are related to the document; things that need to be understood. We do know that there will be the person who makes it, and the executor and the nominees. Besides the main document, there is also the addendum or the codicil. In making a Will, an addendum is made to add names or other facts.

Sometimes the Will does not name an executor. In such cases, the court can issue a ‘Letter of Administration.’ This and other such facts are explained below:

  • Letter of administration is a certificate that is granted by a court to an administrator authorizing him or her to administer the property of the deceased if the Will has NOT named any executor.
  • Probate is proof that the Will that has been made is valid. It implies that the copy of the Will is given to the executor along with a certificate granted by the court. So the Will copy and the copy of the administration as issued by the court together are known as the Probate. It guarantees the validity of the Will.
  • Execution of the Will can be carried out after the court grants the probate. If there are no objections to the Will, then the Court will grant the Probate. The Will document comes into force only after this.
  • Registration of the Will is necessary with a nominal registration fee. For this, the testator has to be present.
  1. Registration has to be done with a nominal registration fee with the testator being present in the court along with the witnesses.
  2. Just the signature of the Will is fine for the Will to be considered registered.
  3. The registration is substantial legal evidence that the proper parties had appeared before the registering officers and that the officer had attested the Will after ascertaining their identity.
  4. A Will must be proved as validly executed since it is a requirement of the Indian Succession Act.
  5. After a Will gets registered, it is placed in the custody of the Registrar, and therefore it cannot be tampered with, destroyed, mutilated or stolen.
  6. The document is then only to the testator himself or, after his death, to an authorized person who produces the Death Certificate.

 

  • Forms & formalities to make a will are not very rigid. Although the making of a Will document does not require a particular form, it does need to be properly signed and attested.
  • The language of a Will can be any. Technical words need not be used in a Will. The terms used in the Will should be very clear to ensure that the intention of the testator gets reflected in his Will.
  • Stamp Duty is not required to be paid for executing a Will or a Codicil. Also, it is not necessary for the Will to be made on a stamp paper only.
  • Attestation of the Will is required by two witnesses who are supposed to witness the testator making the Will in its final shape. As per Hindu Law, a witness can be a legatee. Under the Parsi and Christian law, a witness cannot be an executor or beneficiary. A Muslim is not bound to get his Will attested if it is in writing.

 

Most importantly, an individual needs to remember while making a Will that there is a separate, exclusive Will required for his Indian property if he is an NRI. If you make a Will in the country of your residence it can be valid for your assets there – for you to be able to either validly pass on your assets to others in India, the document should be framed and based there too.