They say where there is a will, there is a relative. Jokes apart, as a part of succession planning, it is necessary, rather mandatory, for any person, howsoever rich or poor, young or old, healthy or otherwise, to prepare a will. If he fails to do so, his near and dear ones left behind will suffer untold miseries. And moreover, he won’t even be around to witness these or fix the same.
What is a will?
Will’ is defined (u/s 2(h) of the Indian Succession Act) as the legal declaration of the intention of a testator with respect to his property which he desires to take effect after his death. It is usually written and signed by the testator and attested by at least two witnesses. These witnesses need not know the contents of the will.
It is advisable to get one’s will drafted by a lawyer or a chartered accountant to ward off any ambiguity arising out of a lack of knowledge of legal terminology. Normally, the property gets divided between those to whom the property is bequeathed. It is only when someone challenges the will on some ground, such as the testator was insane or not in right frame of mind or was forced to sign the document and goes to a court of law, the law comes into picture.
The decision of the court is termed as a probate which is held as authentic and valid. A probate is also required when a person dies intestate (without making a will). Registration of the Will with proper authorities gives a little more weight to the will but it can also be challenged.
Normally the judge examines the grounds under which the will is challenged. In case of intestate death, the judge distributes the assets as per the Succession Act related to the religion of the person who has expired.
A will can be drawn up for several purposes, such as for disposal of property after death, appointing a testamentary guardian, exercising a power of appointment and revoking or altering a provision of a previous will.
The five salient characteristics of a will are —
There must be a legal declaration.
Declaration must be with respect to the property of the testator.
The declaration must be intended to operate after the death of the testator.
A will dictating the inheritors to take some specified actions is null and void, even if it is registered. For instance, an individual cannot state in his will that the property should go to his wife and after her death to his son. He may make a request to her to prepare her will as per his wish but cannot breach her constitutional right to distribute her estate as per her wish.
Any bequeathed estate becomes the sole property of the legatee with the current attached encumbrances and no other conditionalities. Lastly, in order to hold a document to be a will, it has to be proved that the same is in conformity with provisions as regards for execution and attestation in accordance with Sec. 63 of the Indian Succession Act.
Intestacy (death without a will)
A person of full testamentary capacity can and should dispose of his property by means of a formal valid will. The most obvious reason is that it is preferable to use will as the last effective and beneficial act than to allow the impersonal provisions of intestacy provisions of law to take effect with related tortures.
A testator can appoint executors to be his personal representatives. Such executors can be chosen personally by him so that he can be certain that his estate will be well administered by persons in whom he has confidence. Under intestacy the administrators, before appointment, must provide an administration bond and also sureties as to the due administration of the estate. These are not necessary for executors, since the testator, by naming them, has indicated his faith in them.
A testator, by will, can appoint a Guardian for his infant children. Under intestacy, if there is a minority or life interest, the personal representatives or trustees have power to invest conferred by law.
Registration of a will
Though not a necessity, it is always safe to register your will. The sub-registrars are empowered to collect registration fees for all documents submitted for registration which is subject to the Registration Act and rules pertaining to that State but this is unrelated with the value of the wealth of executor. Any person wanting to execute and register his Will has to do it in person and nobody else can represent him for registration of the same.
Take care
It is not enough to hold the assets in joint names or designate a nominee. Such persons do not automatically get title to your assets. The Will supersedes everything else. If one dies intestate (without a will), any distant relation can stake a claim to your assets and matters may lead to litigation.
It is advisable to appoint more than one executor, and preferably an odd number. In case of any dispute, majority prevails.
None of the executors or beneficiaries should attest the will as witness. An executor can also be a beneficiary but it is preferable to avoid such a situation. Sign every page in full to ensure that no one can fraudulently change or insert pages. Make more than one copy of the original will (not photocopies) and keep them safely at different places.
To sum
And last but not the least, when you are indeed drawing up your will, keep the following words of Warren Buffet in mind – “I believe in giving my kids enough so they can do anything, but not so much that they can do nothing”. In other words, the inheritance that you leave for your children should be enough so that they can fulfil their ambitions but not so much that it kills their motivation.
The authors may be contacted at
wonderlandconsultants@yahoo.com
