Last Will and Testament
A “WILL” can be defined as “A legal statement written by an individual, stating the manner in which his or her wealth may be distributed after his or her demise.” A person making a Will is known as a “TESTATOR”.
A Will after death of person, reduces the confusion of sharing property amongst the family members and relatives.
In case a person dies without making a Will, he/she is said to have died intestate. His/her property shall be inherited to his/her legal heirs in accordance with the personal law applicable to him/her i.e. either The Hindu Succession Act, 1956, The Indian Succession Act, 1925, un-codified law of Muslims, Parsis etc.
Definitions in relation to preparation of a WILL:
A WILL: is defined as A legal statement written by an individual, stating the manner in which his or her wealth may be distributed after his or her demise.
CODICIL: if any change has to be made in a will, a codicil needs to be made. It is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will.
EXECUTOR: is appointed in a will to administer the estate after the death. An Executor is charged with the duty and conferred with the power to carry out the directions contained in the Will.
LEGATEE/BENEFICIARY: is a person who inherits the property under a Will.
PROBATE: is a copy of the Will, certified under the seal of a competent Court.
TESTATOR: is a person making a Will and executing it
The executor is the most important person in the WILL. An executor is charged with the duty and conferred with the power to carry out the directions contained in the Will. An Executor has to see that everything is divided in accordance with the Will.
The executor shall file the petition for obtaining probate of the Will. The court shall grant probate only to an executor who has been named in the Will. A Beneficiary can also be an Executor.
A testator can appoint one or more executors. The appointment of an executor may be absolute or for a limited purpose or limited time. An executor as such does not derive any benefit under the Will, unless specifically provided for. However, as an executor has vast powers and the property vests in the executor until it is finally distributed to the legatees, it is therefore advisable to appoint a responsible and accountable person/institution. The Executor is primarily appointed to manage the estate of the deceased for the benefit of the beneficiaries/legatees under the Will.
Duties of an Executor :
- To distribute the legacies
- To collect and realize estate of the deceased
- To ascertain the assets of the deceased person.
- To pay testamentary and funeral expenses.
- To collect the debts and assets of the deceased.
- To pay the debts of the deceased.
- To apply for a Probate, whenever necessary.
- To manage the estate of the deceased for the benefit of the beneficiaries/legatees under the Will.
In a WILL all movable and immovable property of which the testator is the owner can be bequeathed. Property which is not legally transferable cannot be bequeathed.
The testator has no right to bequeath all the assets to an institution or a trust leaving his/her family and dependants in poverty and deprivation.
Probate is a decree passed BY A COMPETENT COURT DECLARING THE LEGALITY/CORRECTNESS and GENUINENESS OF THE WILL OF THE DECEASED
Probate means “the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator”.
A PROBATE IS MANDATORY WHEN THE WILL IS EXECUTED BY A HINDU, CHRISTIAN OR PARSI IN THE CITIES OF MUMBAI, CALCUTTA OR CHENNAI, OR PERTAINS TO IMMOVABLE PROPERTY SITUATED IN MUMBAI, CALCUTTA OR CHENNAI.
Thus, a Will made in Pune including properties situated in Pune doesn’t require a probate, but a Will made in Pune including properties situated in Mumbai requires a probate wherein the court declares if the Will is correct and genuine.
Although a probate is not mandatory in Pune, but if one feels that the acts and deeds performed by the executor can be challenged at a later date you can probate a Will made in Pune.
Clauses to be mentioned while writing a will:
- The first paragraph should contain a clause stating that the will has been made in ONE’S FULL SENSES AND WITHOUT ANY KIND OF PRESSURE. Attach a medical certificate to the Will provided by a medical practitioner (MBBS) certifying that the Testator is of sound mind.
- Clauses to specify bequeathing of movable and immovable property to the members specifying their names and the share each would receive.
- Clause to clarify circumstances when the executors die before the death of the testator.
- Clause for PAYMENT OF ANY LIABILITIES incurred in the past
- Clause for PAYMENT FOR FUNERAL EXPENSES AND CEREMONIES to be conducted upon death.
- Clause to specify division of property between the daughters, and implications on the will if they are married. It should also specify circumstances when they remain unmarried.
- Clause to specify if the BENEFICIARY WERE TO DIE BEFORE OR JOINTLY WITH THE TESTATOR then who would inherit the beneficiaries share.
A Will should be signed by the Testator in the presence of atleast two WITNESSES who have to attest the same. The full names and addresss of the Witnesses should be clearly indicated in the Will
A person’s Will becomes operative only after his or her demise. There is no restriction in the way the testator can deal with his or her property even after writing the Will.
Wills Made under Muslim Personal Law:
Muslim Personal Law governs a Muslim testator’s power to make a Will, the nature of the Will, its execution and attestation thereof etc. Under Muslim personal laws in India, A Muslim can bequeath only ONE-THIRD of his property by Will which is left after payment of funeral expenses and debts. The remaining two-thirds of the testator’s property must go to those who are his heirs at the time of his death. However, bequest of more than one third share can be made if consent is received from the other heirs.
However, the above restriction on disposition of property by will does not apply to a Muslim whose marriage is solemnized under the provisions of the Special Marriage Act, 1954 (instead of Muslim personal laws).
DO WE NEED TO PAY STAMP DUTY ON A WILL?
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.
DOES A WILL NEED TO BE REGISTERED?
In India, registration of Wills IS NOT COMPULSORY even if it relates to immovable property.
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.
The non-registration of a Will does not lead to any inference against the genuineness of a Will. Nor a Will can be accepted as genuine by courts even though it has been registered.
A nominee is not a legal heir
The nominee will receive the money/contents of locker as a trustee of the legal heirs of the deceased. Only in case of shares or debentures the nominee can liquidate the shares without permission of the legal heir, as stated in the Companies Act.
In cases where nominee is different from legal heirs it makes sense to have a will in place. Nomination to someone who is not a blood relative can be challenged by legal heir.
Mr. X died on 5th Jan 2014, leaving behind a will stating all mutual funds and fixed deposits to be bequeathed to Mrs.X in full. However, in the nomination form of the bank Mr. Y’s name has been provided. Thus, whom will the amount in the mutual fund and fixed deposit go to? The person named in the will or to the nominee?
WILL SUPERSCEEDES ANY NOMINATION. Thus, in the above the funds will go to Mrs. X and not Mr.Y. If there is a nomination and no Will, then the nomination rules.
Make sure names provided in the Will match the nominee name stated to reduce confusion and disputes.
Always remember, what is stated in the Will overrides nomination.lare and state this to be my Last Will and Testament.