IT IS SANE TO MAKE A WILL
To Avoid Insanity Of Disputes

H.L.Kumar, Advocate

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 Yudhishthar 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 anxious Yudhishthar himself went there but he was also stopped by Yaksha, who told him that he could get water only on the condition that he had to give satisfactory answers to 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? His reply is celebrated one: “Every day we see creatures die, yet every one of us seeks to live forever.”

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 Will is simple and easy by making a hassle-free Will.

This mentality of general human beings 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 times 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.

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. In fact, ‘Will' is a legal statement written by an individual, stating the manner in which his/her wealth may be distributed after his/her demise. A person making a Will is called Testator. Making a Will is sensible because it leaves you to decide how your wealth is used. Although we all know that the wealth is one of the root causes of disputes, yet unfortunately, most of us simply forget to make a Will.

With soaring prices of immovable properties, the question of how to divide wealth, especially if it involves property could cause major dispute. Since wealth is a well-known corrupter of mind, which blinds humans to make distinction between the right and the wrong, it is important to preserve the confidentiality of the Will, for, the lack of confidentiality may pose a grave threat to the life of the testator.

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 you 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 1925 Indian Succession Act, a Will is the 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.

A big potential problem with Wills could simply be not disclosing it, say experts. This often puts family members at loggerheads after the death of the testator because someone might believe they were promised an asset but it doesn't show up in the written Will.

A question is most often asked: Is making of a Will necessary? A Will is necessary if you want to specify to whom you want your assets to be distributed upon your death. If you have not executed a Will or other dispositional document, and if the distribution of assets is not settled by the legal heirs amicably, a court will decide to whom your assets be distributed to. Making a Will is an act of concern to ensure that the people you care or who care for you receive the property you want them to have. If an intended legatee of your estate is unable to manage the assets, your Will can provide that the assets distributed to that legatee are to be placed in a trust, whereby the trustee, named in your Will, will manage those assets, and distribute them to the legatee as you direct in your Will.

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.

In summary, making a Will is not legally required. However, making a Will is necessary if you want to have your say in who gets your property and who raises your children and if you don't have children but property, then who should be beneficial i.e. some individuals or institutions.

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 (person making the Will) should take the 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 t estator and the w itnesses. 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 e xecutor 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 (example: 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 t estator), the structure of the Will can be amended. Even if there are changes in the nature of the property or assets, an amendment may be needed.

• For making changes only in certain clauses of the Will, a Codicil (supplement) is to be prepared which should be read in conjunction with the Will and which has the power to make appropriate changes in the relevant clauses of the Will.

• If there are too many changes in the Will, it is better to prepare an entirely new Will.

• 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 organisation, 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.

• It can be in any language; no technical words need to be used.

SOME COMMON QUESTIONS & CLARIFICATION

Is there a format for making a Will?

There is no format for making a Will. What is required is that it should not be vague or ambiguous. The intention of the testator should be clearly mentioned and formalities of attestation should be meticulously observed.

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 p rivileged 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.

When does a Will become invalid?

A Will becomes invalid if it is not attested by witnesses as required by law.

Whether the video film will be held in 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 fool proof 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.

What procedure should be followed for Video Film?

(i) Make sure that the video stays on without break from beginning to the end. Use natural light as some times artificial light gets too hot.

(ii) The Will should be read and rehearsed by the testator before going for the video filming.

(iii) Video can be zoomed and it should be placed at a distance wherefrom full tele-photo of a page should be visible so that making of signatures can be seen, and on full wide angle the testator, the two witnesses and the document should also be visible. While it is being read out, the zoom lens should be half way, quite like a news reader in the TV. The testator should just remember that he is a news reader for that day.

(iv) Once the video is fixed on, the testator should speak the words: I am so and so, I have now to go for major surgery. Just in case I do not survive, I want to make a Will. In order to avoid dispute, I have decided to have the making of this Will recorded on video film. I considered the matter, sought legal opinion, prepared the draft and now I have finalized the manuscript. I will first read it out.

(v) The testator should now pick up the manuscript and start reading the same at a somewhat slow speed. (The rule is that a news reader reads at 1½ times less than normal reading speed).

(vi) After the testator has read out the entire Will, he should say: ‘I am going to sign it', and he should sign it on each page. At this point the camera should be zoomed on telephoto. The zooming should be done at slow speed.

(vii) After the testator has signed all the pages, the camera should be brought back to full wide angle and he should ask the witnesses to attest the Will. The witnesses will then sign one by one and write their addresses. They need to do so on the last page but it is advisable that they put their signatures on each page as well, although technically that is not necessary.

(viii) The testator should then thank the witnesses. He should then speak before the camera looking into the lens “I have made the Will, I have signed it, and it has been attested that this is my last Will”. He can then wish all the best to every one.

(ix) Care should be taken not to leave the Will with the video cameraman.

Who are incapacitated for making a Will?

No person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause that he does not know as to what he is doing.

How to revoke or cancel a Will?

For revocation of a Will, if it is a registered Will, by executing a deed of cancellation referring to the earlier Will. An unregistered Will can be cancelled by making endorsements to that effect in every page with date. The declaration, as to cancellation, has to be signed by the testator. It can also be destroyed by tearing into pieces or by burning it.