WHERE TEHRE IS A WILL… Introduction Ram Bhau had three sons. Ram bhau owned a flat and some fixed deposits in banks. One of the sons was staying separately and was not on talking terms with the family and had in fact tried to harass Ram Bhau. Unfortunately Ram Bhau died due to mental shock by the behaviour of his son without making a will. After his death, his wife and two sons did not want to give any of the property to the son who had harassed Ram bhau. So the son went to court and claimed his share in the property, both movable and immovable, which was granted. The son came to be stayed with the family and continued his harassment to others. Finally, wife of late Ram Bhau also died and the other two brothers left the house due to harassment of the brother. The son who harassed everybody in the family got the independent possession of the ancestral flat. You must have seen such type of incidents around you. There may be some incidents where relationships must have broken, blood relations must have taken to street-fights over the property matters, people must have spent more money than their share in the value of property on litigations. Why this is happening? Can it be avoidable? Let us try to analyse the first question- why this is happening. Well, there may or may not be consensus on the answers. It is possible that there are so many possible answers to this question. The first and foremost answer is obviously the greed of a person. When we were in a college, we used to learn one theory in Economics. It is called ‘theory of diminishing utility’. According to this theory, if a person requires something and if he gets it, his appetite for the same goes down. E.g. if a person is hungry and if he starts taking food, his hunger goes down. Thus the utility value of food goes down with the food gradual intake of food and at one moment it touches zero, when the stomach is full. Unfortunately, we think this theory does not apply to money. Our appetite for money and money’s worth keeps on increasing. Second possible reason is that we are not very particular when it comes to our duties and responsibilities but we are very careful about our rights. After all, it is a matter of right! Now we move to the second question- can it be avoidable. I feel, to some extent yes. While there is no control over the greed of a person and human complexities, to some extent it is in our hands to avoid future disputes. If we make a will, the distribution of the assets after our death among our kith and kins will be easy. In the above example, had Ram bhau made a will, it would not have been possible for the son who harassed everybody, to claim his share in the property if the will has excluded him from the same. Unfortunately, the very thought of making a will makes many people nervous as it touches the topic of a death of a person. Though everybody knows that it is inevitable, there appears to be strong reservations on making a will even among the most educated people. On the contrary, it is advisable to make a will so that there is no ambiguity about disposition of property among the legal heirs or beneficiaries and their life becomes easier. Further, many people are not aware that a will can be changed at any time during the lifetime of the testator. One word of caution- always make a will but do not gift the entire property during the lifetime unless you decide to rescind this world. Your property is meant to be enjoyed by YOU along with your family and NOT by your family alone excluding you. In this article I have tried to give some practical information on the will in simple language for the understanding of the subject by a common man. WHAT IS A WILL? In legal parlance, a will is defined as the legal declaration of the intention of a person making it (called the testator) with respect to his property, which intention he desires to be carried into effect after his death. In simple words, a will is an expression of a wish of a person as to how his property/assets should be distributed among his near and dear ones after his death. According to his wish, according to his experience in life, according to his philosophy, he can decide the distribution of his assets. He can exclude some legal heirs, he can give more share to some of the heirs or even he can exclude all the heirs and decide to donate to somebody or make a trust of the property for some noble cause. Even if he wants to distribute among the legal heirs as per their legal proportion, it is advisable to make a will, to avoid any ambiguity. Please note that here we are considering only ordinary or unprivileged wills which are made by common man. Who can make a will? Any adult person, who is having any personal assets and who is of sound mind, can make a will in respect of his own assets. A child cannot make a will as he is not matured enough to express his wish. Similarly, a person of unsound mind cannot make a will as he is incapable of expressing his wish in a prudent manner. Need for making a will While legally it is not compulsory to make a will, it is advisable to make one to avoid future probable disputes over the property among the near and dear ones. While it is not in anybody’s hands as to how the near and dear ones will behave after the death of a person, still the very existence of a will, will make them think twice before they take any extreme step. It is not just enough to accumulate wealth and make nominations. The will ensures its disposition in a logical and cost efficient manner. Further the beneficiaries also do not face the legal hassles of establishing their ownership nor they have to spend on legal costs involved in obtaining succession certificate etc. and the time involved in the same. Difference between gift and will While a gift is given during the lifetime of a person where the possession/ownership is parted, a will takes effect after the death of a person. Considering the declining moral values in today’s society, it is advisable to make smaller gifts but not the entire property and reserve the same for enjoyment during the lifetime and give the same by way of a will. Secondly, gift of immovable property attracts stamp duty whereas bequeathal of immovable property is exempt from stamp duty. Tips on preparing a will Will can be in any form as the maker of the will feels as no specified format is prescribed for the same. There is no stamp duty for the same. However, the following points need to be kept in mind while making a will. 1. The will should be made in the language which is understood by the testator(maker of a will). Make a statement that you are making the will with your own free will and without any coercion. 2. Preferably, the contents of a will should not be disclosed to the legal heirs to avoid disturbances in the family during the lifetime itself of the testator. 3. The will may be registered. However, please remember that there is no difference between a registered will and an unregistered will as far as legality is concerned. The only advantage of a registered will is that if the copy available is misplaced or is not in good condition or not locatable, at least , the will is available in Governments’ custody. 4. The will should be signed by the testator and signed by at least two witnesses. The testator and the witnesses should sign in the presence of one another. 5. It is advisable to endorse a certificate on the will itself from the family doctor of the testator certifying that the testator is of sound mind at the time of making the will. 6. Get the will notarized. 7. Will can be changed at any time during the lifetime of the testator but always expressly revoke all the previous wills at the time of making a fresh one. 8. Appoint a person of confidence as an Executor of the will in the will itself. An executor is a person to whom the testator has confided the execution of his will and who has to ensure the implementation of the will. 9. The wording of legacy and bequest clauses should be specific and unambiguous. These are important clauses in the will as the disposition of property is made under these clauses. 10. If you want to create a trust of your property, appoint trustees and also define beneficiaries of the trust property for whose benefit the trust is made. 11. It is always advisable to put a residue clause in the will disposing off the residual property not specifically mentioned in the will. 12. It is advisable to take professional help in drafting the will so as to avoid any ambiguity in the disposition, as also to make it tax efficient , if possible. 13. Review your will periodically and make codicil or fresh will as per the change in circumstances etc. Codicil is an instrument made in relation to a will explaining, altering or adding to its disposition and is deemed to form part of the will. Making a will is an important ingredient of your estate planning and is equally important as your retirement planning. Kalidas Vanjpe Practising Company Secretary

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