Make a Will

Where there is a Will, there is a way..

High property prices and fragmented families have increased inheritance disputes often results in bitter feuds and lengthy Court battles bringing family bitterness.

Inheriting property does not always bring out the best in family members. Property disputes are a common occurrence in India. The genesis of the family dispute predominantly may be attributed to two prime reasons in India – windfall financial gain to the beneficiary without corresponding effort; secondly since greed is a great leveller, disputes over sharing of inherited wealth take place across the society, from low-income households to leading business families in India. Very often newspapers carry spicy sensations with headlines regarding many famous family disputes that arise out of unavailability of any Will or lack of proper drafting. Noteworthy is the fact that newspapers sensitize only such "disputes‟ which sell; there are multitude of family disputes that are conveniently buried under the carpet. The statistics of pending legal cases before various Indian Court's involving the family dispute related to inheritance of family properties reveal the real story.

As is common knowledge, litigation does not always lead to a satisfactory result. It is expensive in terms of time and money.

A person can ensure as to how his/her property should devolve and to whom it shall devolve, after his/her death, through a Will. If a person dies without leaving behind his/her Will, his/her property would devolve by way of law of intestate succession and not testamentary succession (i.e. in accordance to the Will). Hence, it is preferable that one should make a Will to ensure that one's actual intention is followed and the property is devolved accordingly. Yet around 80 per cent Indians die without making a Will resulting into unwanted legal battles. Will is an important testamentary instrument through which a testator can give away his/her property in accordance to his/her wishes. Section 2(h) of Indian Succession Act, 1925 (“ISA”) provides that Will means the legal declaration of the intention of a person with respect to his/her property, which he desires to be carried after his/her death.

In the absence of any proper Will, the Court steps in and distributes the property according to the existing laws. If you have no apparent heirs and die without a Will, it is even possible that the state may claim your estate.

The Will is, in fact, the simplest way to ensure that your funds, property and personal effects will be distributed according to your wishes after your death. In India, the law with regard to execution, attestation, revocation and interpretation of Wills is governed by the provisions of the ISA in case of Hindus, Sikhs, Jains and Buddhists. Wills made by Muslims are governed by the Muslim Personal law. The basic requirement to write a Will according to Section 59 of the ISA provides for every person of sound mind, not being a minor, to dispose of his/her property by a Will. Generally, one makes a Will between forty and fifty years of their age, since by then he/she would have accumulated sufficient wealth - both movable and immovable. One can make revisions later or preferably destroy the previous Will and make a fresh one. Explanation I to Section 59 of ISA provides that a married woman may dispose by a Will of any property which she could alienate by her own act during her lifetime. Explanation II provides that the persons who are deaf, dumb or blind can prepare a Will, if they are able to prove that they were aware of what they were doing. Explanation III provides for persons who are mentally ill and insane. However, subsequent insanity does not make the Will invalid i.e. if a person makes a Will while he is of sound mind and then subsequently becomes insane the Will is valid and is not rendered invalid by subsequent insanity. Further, a person of unsound mind can make a Will during his/her lucid interval. A Will made by a person who is intoxicated or is suffering from any other illness, which renders him incapable of knowing what he/she is doing, is invalid.

A will need not be in legal language, and it is not necessary to use technical terms. Section 74 of ISA provides that a Will may be made in any form and in any language. No technical words need to be used in making a Will, but if technical words are used it is presumed that they are used in their legal sense unless the context indicates otherwise. Any want of technical words or accuracy in grammar is immaterial as long as the intention is clear.

At the time of interpretation of the Will, regard must be taken, not only to the actual words used, but also to the evident intention of the testator. It is therefore essential that the testator makes very clear his/her intention to dispose of property in the Will. We have been reading few cases of famous Indian families where the Will has been challenged in the Court including the controversy that arose with regards to the Will of Priyamvada Birla, widow of M.P.Birla, which decided the fate of the Birla group of Industries. Another famous case of Aashirwaad property dispute belonging to Mr. Rajesh Khanna, the first megastar of Bollywood family is currently embroiled in. What do you think about this issue? Don‟t you think Rajesh Khanna should have made a Will to ensure that Anita receives some part of his possessions? Similarly another moot point that engages attention is „Why did the maverick entrepreneur Dhirubhai Ambani not write a Will, leaving behind in jeopardy the Ambani family's stake of 46.67 per cent equity in Reliance Industries, the then worth of Rs 35,552 crore (Rs 355.52 billion). The family's shares were held through a series of investment firms and other companies. As a father, he was conscious that had he written the Will, any one of the sibling would have cried a foul, go to the Court, wash their linen in public and all the skeletons kept in wrap in cupboards would have become public, which ultimately did become. Under the Hindu law of succession, the personal property of a man who dies without leaving a Will has to be divided among his wife and children. As things started unfolding subsequently, the fight within the family more particularly the claim over controlling stakes (read with greed) started becoming public, the public confidence in the Reliance Group as a whole, took a sharp dip ultimately reaching to such a level that the Indian government had to intervene and advised them to end their fight for the good of the national economy. Good sense prevailed; Ambani family resolved their dispute through mediation and conciliation.

Taking a cue from the lessons learnt from the Ambani family dispute, Prathap C. Reddy, the 80-year-old founder of India's biggest hospital operator, Apollo Hospitals Enterprise Ltd. (APHS) has formed a team of Seven-member Family Council that includes Reddy himself, his four daughters and two professional advisers to draft a Will, One legal observer notes that of late, there is a growing demand of writing a Will to avoid long Court battle.

A Will becomes enforceable only after the death of the person who has made the Will. The person making the Will is known as the testator. One of the most important aspects of the Will is that it should be written clearly and there is no ambiguity. The testator must clearly and in simple language specify his/her intention. Use of technical or difficult words must be avoided. The identity of the property being bequeathed must be very clearly specified, and the identity of the person entitled to the property must also be very clearly specified. It is a legal document, which has a binding force upon the family.

What type of wealth can be covered under the Will? It is not ancestral property that one can write a Will since what he /she has inherited from his/her parents will automatically pass to the next generation. It is personal wealth that one has amassed in his/her lifetime, called self-acquired property.

Getting the Will attested or witnessed by a doctor is a good idea to prove that the testator was in a sound state of mind at the time of making the Will.

The next stage is to appoint an Executor. Who can be the Executor? The Will should normally provide for the appointment of a few trusted persons as the executors of the Will after the death of the testator. The trusted persons will ensure that the properties are distributed as per the intentions of the testator. It could be anybody from the doctor or the lawyer or a neighbor who does not have an interest or stake in the Will. An executor is appointed by the testator, as distinguished from an administrator who is appointed by the Court. However, it is not essential to appoint an executor but where the property is huge and needs to be administered for a long period of time, it is better to appoint an executor.

Registration of a Will is not compulsory under the Indian Registration Act, 1908. An unregistered Will does not mean that the Will is invalid. A testator, or after his/her death a person claiming to be the executor of the Will, may present it to a Registrar or Sub-Registrar for registration. Registration is a "constructive notice‟ informing the world at large of happening of the event. Registration thus removes all doubts about the Will and is an easy procedure. In order to register the Will, one should go along with two witnesses to the office of the sub-registrar. Also, Hon'ble Supreme Court of India in the case of Narain Singh v. Kamla Devi (AIR 1954 SC 280) has held that mere non-registration of the Will, an inference cannot be drawn against the genuineness of the Will. However it is advisable to register it as it provides strong legal evidence about the validity of the Will. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his/her death, to an authorized person who produces the Death Certificate. The initial burden of proof is always on the person who propounds the Will.

“Never bequeath your property during your lifetime. And for obvious reasons, do not reveal the contents of the Will to anyone."

Section 62 of ISA provides that a Will is liable to be revoked or altered by the maker of it at any time when he/she is competent to dispose of his/her property by Will, Therefore, the essential characteristic of a Will is its revocability.

On the death of the testator, an executor of the Will (executor is the legal representative for all purposes of a deceased person and all the property of a testator vests in him). Whereas a trustee becomes a legal owner of the trust and his/her office and the property are blended together or an heir of the deceased testator can apply for probate. The Court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the Court grants probate. A probate is a copy of a Will, certified by the Court. A probate is to be treated as conclusive evidence of the genuineness of a Will. It is only after this the Will comes into effect.

Conclusion

Most of us work hard all our lives to acquire money and property. Naturally, it follows that we would like to ensure that this hard-earned wealth falls into the right hands even when we are not around. If we have a clear picture of the different aspects of a Will and how it should be made, we can avoid possible pitfalls. In this way, our near and dear ones will not be involved in unnecessary disputes and litigations after our time. Family settlement is always a better option than approaching a Court. SK Attorneys S-38, Greater Kailash New Delhi – 110048 India

Website: www.skattorneys.in

Email: info@skattorneys.in @2014 SK Attorneys. All rights reserved.

DISCLAIMER

The contents of this article should not be construed as legal opinion. This article provides general information at the time of preparation. SK Attorneys neither assumes nor accept any responsibility for any loss arising to any person acting or refraining from acting as a result of any material contained in this article. It is recommended that professional advice be taken based on the specific facts and circumstances. This article does not substitute the need to refer to your legal advisor.