Where there's a will...

Most people know that they need a Will. Yet, surprisingly two out of three people- even people of considerable means die without estate planning. 

None of us want to have our children and grand children cribbing over our property after  death. The controversy on the Will of Priyamvada Birla and non estate planning by Ambani Senior show us as to how ugly succession can turn out, has set me thinking as to how we can have a smooth succession, unhindered by acrimony and incriminations. 

When a person dies his property devolves in two ways:

*According to the respective law of succession, when no Will is made i.e. intestate
*By way of Will What's a will?

A will is a document that transfers your property at your death to designated persons. It is revocable, which means that it is subject to change until your death. It becomes effective only upon your death.

The goal of your will is to distribute your property to your wish, like your diamond ring to your favourite daughter-in-law or your farm house to your grandson.

A will also provides for your assets to be managed or for the care of your children by naming guardians for them.

Why you should make a Will

*No one is obliged to make a Will but it is essential to do so if you want to ensure that your wishes are carried out after your death.
*Without a will, your intestacy law will make all the decisions for you.
* Peace of mind and avoidance of dispute. Choose whom you wish to serve as the executor of your estate, someone who will see that your directions are carried out in a timely and orderly manner.

Without a will, a court will appoint an administrator to carry out these duties. The administrator chosen may not be the person you would want to serve.
nName a guardian for minor children; make special provisions for loved ones who are in ill health or otherwise unable to handle an inheritance; living with a partner whom you have not yet married; continue a program of charitable giving; provide how a going business will be continued or liquidated. Without a will, law will distribute your estate to your nearest relatives, outright, without looking any further as provided under the Act applicable to you.

*Take advantage of opportunities to reduce taxes and administrative costs, if any associated with settling your estate.
Without a will, there are few, if any, opportunities to reduce these expenses.
The Law applicable to Wills 
*The Indian Succession Act, 1925
*Hindu Personal Laws
*Muslim Personal Laws
*The Indian Registration Act, 1908

Person competent to make a Will:

*Any person of sound mind
*Who has reached the age of majority ( who is above 18 years of age)
Points to remember
*There is no prescribed form of a Will, it can be written on a white sheet of paper.
*A Will can be written in any language and no technical words need to be used in a Will; however the words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.
*Will could be written without the advice of a lawyer; however I would strongly recommend anyone writing a Will to always seek the advice of a specialised Property Lawyer near your area.

There are many instances where a Will can become void on the ground that it does not express any definite intention of the person who wrote the will.

*Will should be executed voluntarily and that there should not be any fraud or coercion
*In order for the Will to be effective, it needs to be properly signed and attested.
The Will must be initialled by the Testator at the end of every page and next to any correction and alteration.

*A Will must be attested by two witnesses who must witness the Testator (the person who write the Will) executing the Will.
*The witnesses should sign in the presence of each other and in the presence of the Testator. I would recommend that the witness must, normally, be of an age that they will outlive the Testator.

This is because if the Will is questioned, it has to be proved by at least one witness who is capable of giving evidence.

It is desirable that the witnesses are not beneficiaries under the Will. (Under Parsi and Christian law, a witness cannot be an executor or legatee. 

However, according to Hindu Law, a witness can be a legatee. A Muslim is not required to have his Will attested if it is in writing.)

*No stamp duty is required to be paid for executing a Will or a codicil. A Will, therefore, need not be made on stamp paper
*The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity.

Registration of Wills is not compulsory even if it relates to immovable property. 
The non-registration of a Will does not lead to any inference against the genuineness of a Will. In other words, registration therefore does not give any special sanctity to the Will though registration of the Will by the testator himself evidences the genuineness of the Will.

(Whether registered or not, a Will must be proved as duly and validly executed, as required by the Indian Succession Act. 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).

*When a Will is to be registered with the registrar/sub-registrar with a nominal registration fee.

The Testator must be personally present at the registrar’s office along with witnesses.
*A Will can be revoked, changed or altered by the Testator at any time when he is competent to dispose of his property. A person can revoke, change or alter his Will by executing a new Will, revoking the earlier Will, registering the new Will (if the old Will is registered), destroying the old Will or by making a codicil.

*Care must be taken to ensure that the intention of the testator is fully captured in the Will so that the scope for disputes is reduced to a minimum level.

(The writer is a qualified Solicitor from UK and practicing Lawyer from Chennai High Court, he can be contacted at [e-mail])