"WILL" POWER

"Ignorantia juris neminem excusat."
"Ignorance of the law is no excuse."

Quite contrary to the caveat mentioned above, ignorance is what we profess when confronted with Law and legal problems, however minor they may be. Law is something we are not acquainted with, and lawyers are people we'd rather not acquaint with. But ignorance of law, though not fatal, is even at the best of times exasperating. A little knowledge of laws relevant to issues that concern us would go a long way in solving our problems.

Take for instance, wills. Though not unheard of, “will” is certainly an alien concept so far as the average Indian is concerned. Contrary to popular perception that wills are meant only for the very rich or the very old and sick , a will can be drawn even by a person in good health and with even a little property to his/her name.

What is a Will?
Before we get down to the nitty gritty of making a will, it would help us to know what a will is. Sec.3 of the Indian Succession Act 1925, which applies to all Indians except Muslims, defines a will as "...a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death." Simply put, a will is a written statement of a person's intentions as to who shall inherit his property after his death, thereby in a way exercising control over his property even after his death. A testator is one who makes a Will.

Why make a will?
For more than one reason it makes sense to make a will irrespective of one's age or amount of property s/he owns. One, it helps avoid family skirmishes by setting out who should inherit what and to what extent. In the absence of a will, any dispute has to be settled only by taking recourse to lengthy court battles. Secondly, special family circumstances such as a physically or mentally handicapped sibling, invalid elders, etc, can be considered and provision be made accordingly. Also, the rights of an unfaithful spouse or an ungrateful offspring can be taken away. A will being an extremely personal document, the testator can be frank about his opinions regarding his family and friends without fear or ridicule. But the best part is that it is revocable anytime during the lifetime of the testator and alterations can be made in accordance with changing circumstances.

Who can make a Will?
Any person who is a major, of sound mind (ie, be able to understand their actions and their implications), and be the absolute owner of some property. Deaf, dumb, blind and other physically handicapped people also can make Wills provided they have full knowledge of the contents.
A woman can make a will of property over which she has all rights including the right to alienate.

Property that can be willed:
All kinds of property, movable or immovable, tangible or intangible (including shares, bank balances & even gas and electric connections) may be willed. However, the testator should be the absolute owner of the property; ie s/he should have full right over the property, and it should be self acquired property. If it is ancestral or joint family property, his/her share in the said property may be willed, even if that share happens to be an undivided part of a larger property.

Format:
Except for privileged Wills and Wills made by Muslims, every Will must be in writing. However, no specific format is required. The testator's intentions must be unequivocally set out in simple language on a plain sheet of paper. No stamp paper is needed. Typing, though not essential, is desirable so as to avoid the ambiguity that is usually associated with manuscripts.

Legal requirements:
Once completed, the testator shall sign the document or affix his thumb mark. It should be attested by at least two witnesses who have witnessed the will being made, but they need not be told the contents of the will. Attestation is insisted so as to rebut any doubts as to coercion, undue influence or fraud.
An attesting witness should be chosen with care as s/he may later be called upon to testify at the courts. S/he should preferably be well-known , younger in age, of sound social and financial status and a person of integrity, so as to rebut any doubt of being a purchased witness.
Neither the attesting witness nor his/her spouse may be a beneficiary under the will.

Codicil:
Sometimes, after making a will, and getting it attested, the testator may want to make some changes , or circumstances may necessitate changes such as inclusion or exclusion of some persons or properties. In such a case, s/he may make what is called a CODICIL; a supplement to a Will wherein required changes are incorporated, either on a sheet of paper appended to the Will, or endorsed on the original Will itself.

Registration:
Once attested, the will becomes a valid document. Registration, though not mandatory, is advisable as registration does not require stamp duty, and registration entails safe custody of the document as it is now in the records of the sub registrar's office, and therefore cannot be tampered with, destroyed, lost or stolen.
However, mere registration does not confer genuineness on the will. Conversely, a will cannot be challenged merely because it is unregistered.

Revocation:
A Will may be revoked by the testator anytime during his lifetime by;
i ) A subsequent will or codicil;
ii) A written declaration and execution of his intention to revoke the Will.
iii) By burning, tearing or otherwise destroying the same, or permitting some other person to burn, tear or destroy it in his presence with the intention of revoking it.
iv) By marriage.
Therefore, a subsequent Will effectively revokes the previous Will (though registered), by virtue of a revocation clause in it. However, to rebut any doubt as to its genuineness (which the testator will not be alive to prove), it is advisable to register the subsequent Will also.

Wills, thereby, essentially seek to secure the rights of the testator's family even after his/her death, in so far as the properties and assets are concerned.