|
|
||
|
Dr.(Mrs.) Indu Kumar, M.A. LL.B. Ph.D. |
||
|
People
make ‘Will’ to avoid any controversy after death but sometimes the
Will results into the quagmire of conflict.
However, if proper care and caution are observed, while framing
the ‘Will’, then the genuine person will be saved tension and
trauma, bitterness and rancour. |
||
|
Death
is certain to all but the time of death is always
uncertain. Ironically,
the most certain thing in one’s life comes at the very end of it - the
death. But life still goes
on and beyond. And the dead
lives among the alive - in their memories that he or she leaves behind
besides other things. There
cannot be a dispute regarding the fond memories, which can be shared
without dispute but the ‘other material things’ most of the time
become a bone of bitter contention resulting into unending conflicts.
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 (one
who leaves a Will) among his/her legal heirs.
Confidentiality
in making the Will Where
there is a will there is always a way.
So goes old adage. Making
of Will is simple but while making it, one should ensure that there
should not be any conflict otherwise the whole purpose would be
defeated. Since
wealth is a well-known corrupter of mind, which blinds humans from the
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.
What
is a Will? Will
means ‘a legal document that says what is to happen to somebody’s
money and property after his/her death’ according to Oxford Advance
Learner’s Dictionary. Legally,
Will is 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. It includes codicil (something added to a Will) and every
writing making a voluntary posthumous disposition of property.
It is a testamentary instrument by which a person makes
disposition of his property to take effect after his death, and which,
in its own nature, is ambulatory and revocable during his life.
Thus, a Will can be changed by the executant as and when he so
likes. It is a secret and
confidential document which the executant is never ordered to produce.
Essential
ingredients of a Will There
are two essential characteristics of a Will :
Advantages
of making Will
If
one does not make a Will, then his property will be inherited by legal
heirs in accordance with the laws of inheritance applicable to him.
However, some people would like to dispose of their property
according to their own wishes. Thus, there arises the need for making one’s Will.
Apart from it there are certain distinct advantages of making a
Will. Firstly,
when a person dies without having made a Will, there is often confusion
amongst the family members and relatives as to whether the deceased did
make any Will prior to his death or not, but if the Will is available,
the only question that needs to be ascertained is whether it is the last
Will of the testator. Secondly,
Will is absolutely personal document.
More than anything, it is an expression of the relationship with
the members of family or relatives, etc.
The views, opinions and feelings, etc., are indicated in this
document. A Will allows the
devolution of property in a personalized manner rather than letting the
impersonal rules of inheritance take effect. Thirdly,
many disputes can be resolved at the very outset if there is a clear
disposition of one’s property in a Will. Fourthly,
by means of a Will, one can appoint in writing, a testamentary guardian
for his infant children. A testamentary guardian is a person, who is
appointed by a testament of a Will. Fifthly,
a Will provides more room inter se the laws of inheritance, which
sometimes do not cater to the special needs and requirements of the
members of a family. For instance, a father has two sons. One is
physically and mentally fit but the other is handicapped due to any
chronic disease since childhood. The laws of inheritance would treat
both these children on an equal footing.
But by means of a Will one can have somewhat greater provision
for a handicapped son. Also,
special or additional share of the property can be given to a widowed
daughter or an invalid parent. Not
only that, by means of a Will, one can make some provision for a
faithful servant, a friend or a relative in need of money, and so on.
All such people could never receive any benefit whatsoever under
the laws of inheritance in the absence of a Will.
Also, one can give whole or some part of his/her property, to a
temple, hospital or other charitable institutions. Sixthly,
in the absence of a Will, even the most unwanted son, who had left the
house for disobedience, fraud, violence, etc. may turn up to claim his
share of estate from his father’s or mother’s property. Similarly,
an adulterous wife might also demand her share from her deceased
husband’s property as per inheritance laws.
Drafting
of a Will Drafting
of a Will is different from drafting a letter.
It is not something written straight off. It is what you think should happen with your assets, when you
die. All kinds of problems
surface because you failed to address what you thought were small
details that turned out to be crucial.
The Will has to be in writing or typed.
Attestation
of Will It
is necessary that the Will is signed or marked by the testator himself.
Mere signing of the Will or putting a mark on it is not enough.
The Will is further required to be attested by two or more persons who
have seen the testator sign or affix his mark to the Will, or seen some
other person sign or affix his mark to the Will at the direction of the
testator. The attesting witnesses must sign or put their marks on the
Will in the presence of the testator but it is not necessary that they
should be present at one time. The
attesting witness should never be beneficiary of the Will. Doing so a legal conflict of interests could result to
beneficiary not receiving what the testator had stated in the Will. It
is, however, not necessary that a medical practitioner should certify
that the testator was of sound and disposing mind at the time when he
executed the Will. But since after the death of the testator, the
disgruntled persons or legal heirs, who are excluded from the benefit
under the Will, raise various objections including want of testamentary
capacity of the testator, a salutary practice has grown up to get the
testator examined by a medical practitioner who certifies at the foot of
the Will that the testator is mentally and physically of sound
condition. Also, for
attestation, the preference be given to young persons of younger age.
Circumstances
surrounding execution of Will should not be suspicious There
may be cases when the execution of the Will is surrounded by suspicious
circumstances such as where the signature is doubtful, the testator was
of a feeble mind and there was likelihood of his being influenced by the
persons who were interested in getting his property; where the
propounder has taken permanent part in the making of the Will or where
in the circumstances of the case, the disposition in the Will appears to
be unnatural, improper and unfair.
In Surender Pal v.
Dr. (Mrs.) Saraswati, AIR 1974 SC 1999 the Apex Court has observed
“In all such cases where there may be legitimate suspicious
circumstances those must be removed and satisfactorily explained before
the Will is accepted................ After all, ultimately it is the conscience of the Court that
has to be satisfied, as such the nature and quality of proof must be
commensurate with the need to satisfy that conscience and remove any
suspicion which a reasonable man may, in the relevant circumstances of
the case, entertain.” The Supreme Court in its judgment in Niranjan
Umeshchandra Joshi v. Mrudula Jyoti Rao and Ors. dated 15th
December, 2006 (having widely attracted the attention of print and
electronic media) has held that for a Will to be valid, signature of
testator alone would not be sufficient but it has also to be proved that
he was in proper state of mind at the time of making the Will.
The case involved the Will of Umeshchandra Joshi, owner of
‘Ramtirath Brahmi Hair Oil’ Company, who had seven sons and three
daughters but he had bequeathed all his property on his second son,
depriving the rest. The
Will was drafted in ICU of a hospital where he was undergoing treatment
for liposercoma. He was being treated by a doctor who was a student of
beneficiary. The Will was executed in the presence of two witnesses who
were also close to the beneficiary. Family
members who were deprived questioned the genuineness of the Will and
accused the beneficiary of playing fraud on family members. Raising
suspicion on the circumstances surrounding the Will a Division Judge
Bench of the High Court held that the witnesses to the Will are
interested persons, and evidence adduced in support of execution of the
Will was unsatisfactory. Upholding
the verdict of the High Court, the Supreme Court also took notice of the
meticulously drafted Will and held “when he was admitted in ICU, he
would not be permitted to carry documents.
It is unnatural that he would remember all the details of his
assets”. The Bench added, “An inference can, therefore, be safely
drawn that Appellant (beneficiary) had a role to play in execution of
the Will.” The
disputed issues pertaining to the assets of Smt. Priyambada Debi Birla,
a widow belonging to one of largest business families are yet to be
finally decided. Her late
husband was a celebrated philanthrophist.
But despite enormity of her wealth, public perception was that
she would earmark her assets for charity and not for any individual, her
trusted personal advisor, a professional with whom she had deep
fiduciary relationship. Interestingly
he was also made executor of the Will which is not a normal practice in
law pertaining to Wills for one’s fiduciary advisor to also be the
beneficiary. In Rajendra
Singh Lodha v. Ajoy Kumar Newar, (2006) 3 Cal. LT 547, the
Calcutta High Court appointed administrators pendente lite interim
order pertaining to the assets of the deceased. A
beneficiary should never be a witness to your Will.
Doing so is a legal conflict of interest and could result in your
beneficiary not receiving what you have stated in your Will. The
same person both as beneficiary and witness casts doubt about what
influence that person may have had on you, and could open the door for
other beneficiaries to claim that you were influenced by that
“unscrupulous” person.
Language
of the Will The
language of the Will should be plain and simple. It should not create
any difficulty in interpreting the Will or ascertaining the true
intention and desire of the testator. References in the Will to persons
and properties should be clear and specific so that there should not be
any difficulty or confusion of identifying the same.
Schedule
of Properties If
the property sought to be disposed of consists of several items e.g.
houses, lands, movable articles, jewellery, share certificates, bonds
etc. then there should be a schedule of properties giving full
description thereof appended to the Will and it should also be signed by
the testator and attesting witnesses.
Registration
of Will is optional Under
Section 18(e) of the Registration Act, registration of a Will is
optional. Some people get
it registered. This is
probably out of the apprehension of the testator or his executor that
the Will might be lost or destroyed or to prevent the possibility of any
attempt to set up false or bogus Will.
A Will can be registered in the same manner as any other
document. A
Will can also be deposited with the Registrar for safe custody in a
sealed cover superscribed with the name of the testator and that of his
agent if any and with the statement of the nature of the document. The
Registrar then keeps the sealed cover containing the Will in his fire
proof box. On the death of the testator, the executor or any person
interested can give an application to the Registrar, who on being
satisfied about the death of the testator, causes the contents of the
Will to be copied into Book No.3 called “The Register of Wills and
authorities to adopt”. Thereafter the Registrar has to redeposit the
original Will as before. It
will thus be seen that law has provided for such rules which aim at
giving full effect to the last desire of testator with regard to the
disposition of his property after his death and protect interest of the
legatees.
indukumar99@yahoo.co.in |
||
