Rules governing transfer of property through Will
Making a Will helps ensure one’s property devolves as wished and the right heirs receive their fair shares. Under the Indian Succession Act 1925, a Will is a legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death.
After the death of a person, his property devolves in two ways – according to his Will i.e. testamentary, or according to the respective laws of succession, when no Will is made. In case an individual dies intestate (no Will is made), the laws of succession come into play.
Law of successionThe law of succession defines the rules of devolution of property in case a person dies without making a Will. These rules provide for a category of persons and percentage of property that will devolve on each of such persons.
A Will is a legal declaration. Certain formalities must be complied with in order to make a valid Will. It must be signed and attested , as required by law.
A Will is intended to dispose off property. There must be some property which is being given to others after the death of the testator.
A Will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator . It has no effect during the lifetime of the testator.
A testator can change Will
A testator can change his Will, at any time, in any manner he deems fit. Every person of sound mind, and not a minor, can make a Will. If a person is of unsound mind at the time of making a Will, the Will is not enforceable.
A Will, obtained by force, coercion or undue influence , is a void Will as it takes away the free agency of the person. A Will, made under influence of intoxication or in such a state of body or mind, sufficient to take away free agency of the testator, is void.
A Will can be made at any time in the life of a person. There is no restriction on how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable. A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.
Will can be registered
Though the registration of a Will is not compulsory , it can be registered with the sub-registrar . If, at any time, the testator wishes to withdraw the Will, he can do so. A Will also can be sealed and kept in safe custody.
On the death of the testator, an executor of the Will or a 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 will grant probate. A probate is a copy of a Will, certified by the court, and is conclusive evidence that the Will is genuine.
Codicil to the Will
If a testator intends to make a few changes to the Will, without changing the entire Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will.
One must note that a Will or codicil is not unalterable or irrevocable. They can be altered or revoked at any time. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court.
If no objection is received, the probate will be granted. It is only after this that the Will comes into effect.
A will can resolve vexatious family issues
Will is a legal declaration of the intention of a testator with respect to his property, both movable and immovable. The essential characteristics of a Will are that it must be intended to come into effect after the demise of the testator and it must be revocable by the testator at any time.
Many disputes can be resolved at the very outset if there is a clear disposition of one’s property in a Will.
Had late Sanjay Gandhi, son of late Indira Gandhi, left behind a Will, the possibility of any dispute surfacing between the mother and her daughterin-law would have been remote.
By means of a Will, one can appoint in writing, a testamentary guardian for his infant children. One can have somewhat greater provision for a handicapped child, a widowed daughter or an invalid parent.
Registration of a Will is optional and not compulsory
One can make some provision for a faithful servant, a nurse, a friend in need of money and so on.
Further one can fulfill his spiritual desires like creating a trust, donating to good causes like orphanages, temples, old age homes, hospitals, educational institutions, social service organisations etc.
Any one of sound mind and not being a minor may dispose of his/her property by Will. Registration of a Will is purely optional and it is not compulsory.
It cannot be ordinarily be tampered with, destroyed, mutilated , lost or stolen.
It is kept in the safe custody of the office of the Registry. If an unregistered Will is lost, the testator’s wish cannot be given effect as it will be difficult to trace the Will.
Probate and letters of administration of Will
Probate is a document issued under the seal and signature of a Court officer , certifying that a particular Will was proved, with a copy of the will annexed.
The Supreme Court has recently held that petition for probate or letters of administration of the Will of a testator must be filed within three years from the date of death of the testator.No probate is necessary for Christian and Muslim Wills.
Under Muslim law, male and female can make Will. Will by Pardanasin woman is also valid but stronger evidence is needed to prove the genuineness of the same.
The executor is the most important person in the Will. An executor has a duty to collect and realise the estate of the deceased, pay his debts and distribute the legacies as mentioned in the Will by the testator. The duty of the executor is to probate the Will in a manner known to law. The court shall grant probate only to an executor who has been named in the Will.
All Wills can be revoked
All Wills can be revoked, either impliedly or expressly, either by conduct or by a specific document. By conduct, the Will can be presented to be revoked by the testator.
For example , a testator may make bequest of property in his Will to a person, but he may dispose of the said property even during his life time.
This is called implied revocation. Suppose, the testator makes a bequest of a vacant land in his Will, but subsequently the testator himself constructs a dwelling house therein, in such circumstance, the Will can be deemed to have been expressly revoked by the testator.
It has been experienced that when there is a Will, painful litigation in the family of the testator is prevented. Only in a very few cases, litigation crops up questioning the genuineness of the Will.
Where there’s a Will, there’s a way to draft it
The imagery that most people have of a will is that it is one of the last things to be done in life’s to-do list. The reality is that it is an asset allocation plan for an emergency that you constantly review and update if necessary.
Disputes within big business families over inheritances have highlighted the need to have a long-term plan and put it out in paper. A well-drafted will nips potential recrimination and litigation in the bud. “One of the main goals of estate and succession planning is making sure that your estate passes on to the intended beneficiaries as smoothly as possible. Hence, people come ahead and write a will, early on in life,” says Sandeep Nerlekar, chief executive of Warmond Trustees — a company that specialises in estate and succession planning.
TRUST STRUCTURE
There are many cases where professional advice does help. Take the case of parents who were IT professionals and had a huge concern for their disabled daughter. Here a trust structure was recommended where both parents became advisors to the trust, where medication, education and other expenses were taken into consideration , with objectives being set up for the next 60 years.
CHOICE OF EXECUTOR
The traditional practice of estate planning has been to consult a lawyer, draft a will and leave it with some trusted family acquaintance. The trusted family friend would be entrusted with the task of executing the will. But there have been instances where the family acquaintance is accused of siding with a particular section of the beneficiaries. It is here that the concept of professional companies came in.
Professional companies not only write a will but also introduce processes that ensure that the document remains unchallenged in the court of law and a smooth transfer of estate. For example , Warmond insists on video recording of the will, which further reduces the chances of litigation.
LEGAL RECOURSE
Legal firms too offer customised options. Lawyers can help you write a will. A will being customised for each and every client, the fees, could vary as per the needs of the clients. In most cases, lawyers are happy for a fixed payment of fees, if the client is keen on just a draft. “Drafting the document may attract a fee in excess of Rs 1,000, if there is no other responsibility on the lawyer, besides merely writing the will,” says a Mumbai-based estate planning professional. However, value additions entail extra charges. So if the lawyer is entrusted with ‘safe custody and execution’ of the will, the fees could well form a percentage of your assets. The percentage can be as high as 2-5 % of the market value of the estate.
However, the important point to be noted here is that in most cases, the lawyer recovers the fee from the proceeds of the estate. But in some cases, lawyers charge a part of the fee upfront at the time of the creation of the will. The fee varies and may have a recurring component, if there is a need to create a trust and manage it for years to take care of the interests of the beneficiaries . They also charge expenses arising out of legal battles on the estate
