Words of Will Wisdom
Yesterday this paper ran a piece, ‘Going about it the Write Way’ tackling fundamental questions about Wills. Today, in the concluding section of the two-part series, a look at different kinds of Wills and the tricky issue of nominations. A Will is an important document which enables the individual /any living person to rightfully leave his assets and wealth to whoever he chooses to, after his death. In a way, a person can ensure that his wishes with respect to his assets and property are followed after his death.
After the death of a person, his property devolves in two ways: w According to the respective law of succession, when no will is made— i.e. interstate. w By way of will i.e. testamentary. The law applicable to wills India has a well-developed system of succession — laws that govern a person’s property after his death. The Indian Succession Act 1925, applies expressly to Wills and codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians but not to Mohammedans as they are largely covered by Muslim Personal Law.
>> The Indian Succession Act, 1925
>> Hindu Personal Laws
>> Muslim Personal Laws
>> The Indian Registration Act, 1908
Characteristics of a will
The Will does not take effect from the date of its execution. It speaks from the death of the testator. During the Testator’s lifetime, the Will is an ambulatory document, revocable at any time and having no legal effect.
There are two essential characteristics of a Will:
(i) It must be intended to come into effect after the death of the testator: A gift to take effect in the lifetime of the donor is a deed of settlement and not a Will. And,
(ii) It must be revocable by the testator at any time. Although Wills are usually made for disposing property, they can also be made for appointing executors, for creating trusts and for appointing testamentary guardians of minor children. Section 63 of the Indian Succession Act, 1925 provides that a Will is liable to be revoked or altered by the maker of it, at any time when he is competent to dispose off his property by Will.
Who are the persons competent to make a will?
According to Section 59 of the Indian Succession Act,
1. Every person of sound mind, not being a minor may dispose of his property by will. There is an exception to this general rule that the testator must not be a minor.
2. A married woman may make a Will of her property which she could alienated by her own act during her life time.
3. Deaf, dumb or blind persons can also make a Will, if they are able to know what they do by it.
4. An insane person may make a Will during an interval when he is of sound mind.
The following persons cannot make a Will:
1. A person who is in such a state of mind whether arising from intoxication or from illness or from any other cause that he does not know what he is doing i.e. lunatics or insane persons.
2. Married woman, aliens and convicts are not debarred from making a Will.
3. Minors i.e. below 18 years of age. In case a guardian is appointed to a minor, such a minor reaches the age of maturity only at 21 years.
4. Corporate bodies, by their very nature, are incapable of making a Will, though they may benefit under the Will of an individual partner.
There are however, some disadvantages also in making a Will and they are mostly psychological. In many cases it has been observed that people lose all their interests in life and idem such before the time they would have lived.
If there is no Will, the property would be dealt with as per the laws of inheritance. For Hindus, Buddhists, Jains and Sikhs the laws of inheritance have been codified in the Hindu Succession Act, 1956. For Christians the Indian Succession Act, 1925 will be applicable. Parsis have a different law of inheritance. Similarly, Muslims have their own law. That has, however, not been codified in any legislation but is based on their religious texts. There are two major sects of Muslims — Shias and Sunnis. Both of them have different laws of inheritance.
1. Precaution In drafting a Will:
a) Prepare a list of all your assets and property, which remain after taking into account all debts, liabilities and expenses to get a clear picture of how you wish to distribute the estate.
b) The Will should be drafted in the language best understood by the testator so as to give the impression that the contents were fully understood by the testator.
c) In case the testator is illiterate, the Will should be executed in a language, which the testator can comprehend. And the attesting witness or third attesting witnesses.
d) Unusual characters of the Will should be explained and clarified in the main body of the Will itself. Thus, where a testator bequeaths all his property to his daughter disinheriting and excluding his wife and other two sons or bequeaths his entire property to charity disinheriting his entire family it is desirable that in such circumstances, reasons are clearly stated in the Will itself.
What are the different kinds of will?
a) Privileged and Unprivileged Wills: Wills executed according to the provisions of Section 63 of the Indian Succession Act are called Unprivileged Wills and Wills executed under section 66 of the Act, by a soldier employed in an expedition or engaged in actual warfare, or by an airman so employed or engaged, or by mariner being at sea, are called Privileged Wills. As a matter of rule, the Wills have to be made in writing. However, a soldier during his engagement in actual warfare or an airman so engaged or a mariner being at sea, may pronounce his Will by word of mouth before two witnesses. The will so pronounced by such persons are called Privileged Wills.
b) Conditional or Contingent Wills A Will may be expressed to take effect only in the event of the happening of some contingency or condition, and if the contingency does not happen or the condition fails, the Will would not be legally enforceable.
c) Joint Wills: A Joint Will is a testamentary instrument whereby two or more persons agree to make a conjoint Will. Where a Will is joint and is intended to take effect after the death of both, it will not be enforceable during the lifetime of either.
d) A Will executed by two or more testators: as a single document duly executed by each testator disposing of his separate properties or his joint properties is not a single Will. It operates on the death of each and is in effect for two or more Wills. On the death of each testator, the legatee would become entitled to the properties of the testator who dies.
e) Mutual Wills: A Will is mutual when two testators confer upon each other reciprocal benefits by either of them constituting the other his legatee. But when the legatees are distinct from the testators; there can be no position for Mutual Wills.
f) Duplicate Wills: A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him and the other to be deposited in the safe custody with a bank, or executor, or trustee. If the testator mutilates or destroys the one, which is in his custody, it is revocation of both.
g) Concurrent Wills: Generally, a man should leave only one Will at the time of his death. However, for the sake of convenience, a testator may dispose off some properties in one country by one Will and the other properties in another country by a separate Will.
h) Sham Wills: If a document is deliberately executed with all due formalities purporting to be a Will, it will still be nullity if it can be shown that the testator did not intend it to have any testamentary operation, but was to have only some collaterally object. One thing must be borne in mind that the intention to make the Will is essential to the validity of a Will.
i) Holograph Wills: Such Wills are written entirely in the handwriting of the testator.
Who can be the executor/witness of a will?
An executor is the person appointed ordinarily by the testator's by his Will or codicil.
>> To administer testator’s property and;
>> To carry into effect the provision of the Will.
Casual selection of the witnesses will prove vital in the event of the proof of the execution of the Will at future date. It should be clearly understood that the attesting witness, may, on some future occasion, be required to appear as a witness in court in order to prove the execution of Will.
What is a codicil and how to make alterations in the name of the executor?
An instrument made in relation to a Will, explaining, altering or adding to its dispositions, it shall be deemed to form part of the Will. If the Testator wants to change the names of the Executors by adding some other names, in that case this could be done by making a Codicil in addition to the Will, as there may not be other changes, required to be made in the main text of the Will. It may be that the Testator wants to change certain bequests by adding to the names of the legatees or subtracting some of them. It may be some Beneficiaries or Executor may be dead and the names are required to be removed. Making a Codicil can do all these. The Codicil must be reduced to writing. It must be signed by the Testator and attested by two Witnesses.
What is nomination?
Nomination means an act of nominating. To nominate means to appoint a person who will look after the property of the person after his death. eg: LIC/GIC,BANK etc.
Who can nominate?
Nomination can be done only by an Investor or Policyholder who is major holding account/investment certificate/policy Bond in his own Name. And the nomination facility is available only to individuals in their own capacity singly or jointly.
Who can be appointed as nominee?
A Nominee can be an adult or a minor. If a minor is appointed as a Nominee, a guardian has to be appointed till the minor attains the age of majority and further the date of birth of the minor also should be mentioned, so that the actual date of attaining the majority could be easily ascertained.A Nominee, also, can be a relative or a friend or a well-wisher. It is not necessary that the Nominee should be a blood relative.
What are the rights of a nominee?
Under nomination, the Nominee gets only the right to receive the policy moneys in the event of the death of the Policyholder. Nomination does not pass on the property in the policy. If the Nominee dies when the policy holder is still surviving, then the nomination would be ineffective. Nomination has no effect if the policy holder is surviving. If a Nominee dies after the death of the policy holder, but before receiving policy moneys, then also Nomination becomes ineffective and the money can be claimed only by the legal heirs of the policy holder.
Procedure for nomination—
A member can file nomination in —
w Form no. 15A In case of a single Nominee.
w Form no. 15B More Nominees – Percentage of each Nominee is required to be mentioned.
The Form is to be filed and signed by the party in presence of two witnesses. And three copies are to be filed, one as Ask receipt, second to be received by the party after necessary entry is recorded in the Society's record and the original to be kept in the Society office. (Entered within 7 days from meeting of managing committee).
Fees for recording the nomination—
There is no charge for recording the nomination for the first time. However if the earlier nomination is revoked and new nomination is given to the Society for each subsequent nomination Rs. 5/- will be charged by the Society.
What is the difference between a will and a nomination?
A nomination is not a Will.
When there is a nomination already filed with the Society, the normal impression is that the Nominee on the death of the Member, automatically becomes a member by filing an application. However, The Supreme Court of India has ruled in 1984 that, “a Nominee is a mere Trustee with whom society can initially deal with after the death of a member. All the legal heirs of the deceased Member have a right of succession to the property of the deceased member and a Nominee cannot exclude the other legal heirs.” Thus the nominee merely acts as the trustee. In some instances, the nominee and the beneficiary of the Will is the same person. At all times, the provisions of the Will prevail over the nomination. It is advisable to have the same person as the nominee and the beneficiary of the Will, so as to prevent future disputes. A nomination, in order to be effective, need not be executed as a Will but must be in accordance with the formalities required by the particular provision applicable.
Vimal Punmiya is an expert and Chartered Accountant
Disclaimer: This article is intended to answer basic, most Frequently Asked Questions (FAQ) about Wills. It cannot be used as a substitute for legal opinion.