Rakesh Sharma is in conversation with Radhika Gaggar and Shaishavi Kadakia of the Private Client practice, specialists in estate and succession planning, at Cyril Amarchand Mangaldas, Mumbai.
Legally, a ‘Will’ means the legal declaration of the intention of a person with respect to his property which he desires to be carried into effect after his death.In other words, a Will is a document in which an individual can give instructions on the manner in which his money and property are to be
distributed after his demise.
The benefits of making a Will include the following:
A Will provides the maker the freedom to decide who should benefit from his estate after his lifetime.
In the absence of a Will, the assets will be split amongst the various heirs of the deceased as per the personal law applicable to the deceased. This may be contrary to the deceased’s intention, and may also result in division and fragmentation of the estate, affecting its value and saleability.
As a Will produces clarity on the manner in which the deceased’s affairs are to be ordered after his demise, it helps reduce conflict and disagreement.
Preparing the Will
Any person who is not a minor and is of sound mind can make a Will.
In preparation for making the Will, the individual (testator) should prepare an inventory of his assets and liabilities to enable him to make an informed choice about what assets he wants to bequeath to whom.
While it is not necessary to consult a legal advisor to draft a Will, it would be advisable to seek specialist professional advice when the Will is not straightforward or basic, or is likely to become contentious after the testator’s demise. A Will which is not thorough and lucid may create more
problems than it seeks to solve.
Components of a Will
There are two essential components of a Will – executors and bequests:
Executors are persons who are entrusted with the duty to ensure that the terms of the Will are given effect after the testator’s death.Legally, the executor is the deceased person’s legal representative for all purposes, and all the property of the deceased person vests in him in this capacity till he distributes it to the beneficiaries under the Will.
The law does not prescribe a minimum or maximum number of executors, but it is quite common to have two or three joint executors.
Given that executors have a key role in administration of the testator’s estate, it is advisable to reflect on the choice before identifying executors. For most people, the default executor is their spouse – unless the spouse is, due to illness or some other reason, not in a position to occupy the office. The balance executors may be a family member,a friend, a neighbour or even a trusted professional advisor such as an accountant or lawyer. A professional executorship service provider may also be considered.
A ‘bequest’ or ‘legacy’ is the direction or instruction given in the Will on the manner in which the testator’s property is to be distributed. The beneficiary of a bequest is called a ‘legatee’.
All property which the testator owns in his own name for his benefit can be bequeathed, whether he holds it singly or jointly with others. This would include real estate, financial instruments, partnership interests (unless the partnership deed provides otherwise), cash and bank balances, jewellery,
valuables such as art work, etc.
Bequests can be made to any person – whether a family members or otherwise, for instance, loyal staff, neighbours, charitable entities or causes, and even alma mater.
Bequests are of four kinds – general, specific, demonstrative and residuary. General bequests are those which do not pertain to a specific property, but are expressed in general terms. Specific bequests are those which pertain to some specific/identified property of the testator. Demonstrative bequests
are those which are directed to be paid out of specified property.
A residuary bequest is a bequest of all of the testator’s residual property which remains after specifying other bequests. It will, therefore, capture three kinds of properties:
- Any property which the testator has omitted or forgotten to identify in the Will
- Any property which was bequeathed to someone else but such beneficiary has pre-deceased the testator
- Any property which comes into the testator’s hands after the making of the Will.
Execution of the Will
Once the text of the Will is finalised, it can be printed on any regular paper. The testator should then sign the Will in the presence of two witnesses, post which both the witnesses should sign the Will by way of confirmation that the testator signed the Will in their presence.
The process of witnesses witnessing the signing and then signing the Will themselves is called attestation. Without attestation, the Will is not valid.
Generally, any person can be a witness. That said, it is good practice for the beneficiary under the Will and his/her spouse not to be a witness. Moreover, if the testator is a Christian or Parsi, then under law the bequest will be void if the beneficiary of the bequest is also a witness. It would be advisable to choose witnesses who are young and are likely to survive the testator, are trustworthy, and will be available to give evidence, when required to do so, to prove that the testator signed the Will. For this reason, it may not be practically feasible to have a witness residing overseas.
Other formalities in relation to a Will
Contrary to popular belief, no stamp duty is payable on a Will. Similarly, a Will does not need to be notarised. Moreover, it is not mandatory to register a Will; registration is entirely optional. One of the benefits of registering a Will is that registration is viewed as an important factor in supporting a Will’s genuineness and timing of execution. That said, registration by itself does not dispel all suspicion attached to a Will, nor does non-registration lead to the presumption that the Will is not genuine. Therefore, registration may be considered for a Will which the testator anticipates may be challenged after his demise.
Storage of the Will
It is critical to store the original Will in a safe and secure place to ensure that it cannot be tampered with. At the same time, the Will should not be placed in a location which is not easily accessible to heirs and executors after the testator’s demise.
Keeping both these objectives in mind, testators may store their Wills - in a sealed envelope at all times- in their personal lockers at home or with their executors or advisors such as accountants or lawyers, with instructions provided on handing over/opening of the Will after the testator’s demise.
Amendment of the Will
A Will can be amended as frequently as the testator may desire, but if the changes are significant, or very frequent, the testator may consider preparing a new Will altogether instead of making patchwork changes to the previous one.
The document amending the Will is called a ‘codicil’. The formalities for execution of the codicil are the same as that of a Will – that is, the testator should sign the codicil in the presence of two witnesses who also attest the codicil. The witnesses attesting the codicil need not be the same as those who attested the Will.
Revisiting the Will
It is usually advisable to revisit Wills every few years or after a significant personal event, such as the demise of a parent or birth of a grandchild. This can serve as an opportunity to consider whether the Will needs to be updated to reflect changes to the estate and the family.
Wills by Muslims
Muslim personal law in relation to succession is quite different from the personal law applicable to non-Muslims, including rules such as ‘forced heirship rules’ which impose limitations on what a Muslim can bequeath in his Will. As a general rule, it is recommended that Muslims seek specialist professional advice before making a Will.