India: The Game Of Fortune

Last Updated: 30 September 2010

Article by Kartik Mittal, an associate lawyer with Zaiwalla & Co. Solicitors

While making a will, it is important to ensure that it is legally unambiguous and valid

Most of us spend our entire lives procuring what we consider most important in today's world: money. Everyone wants to make sure that their fortune is passed on to their loved ones after their death. The legal framework allows individuals to bequeath their property through an instrument called a will.

In this case, Manohar Joshi wanted to bequeath his property/wealth to his family, excluding his son Uddhav and daughter Pragnya. Under Indian laws, such a bequest is valid. A person making a will can exclude individuals who otherwise would have received a share if the testator (the person making the will) had died intestate (without having made a will).

Conditional bequest. The Indian Succession Act, 1925, largely covers the law pertaining to wills and codicils. A person can bequeath a property to a legatee (a person who receives an interest under the will) on a conditional basis. But such a condition can be legally invalid or inoperable. In this case, Manohar had bequeathed his property to certain family members on the condition that they shall not have a right to redistribute the wealth differently than as stated in the will.

If a bequest is made in absolute terms with a condition, then such a condition is legally void. So, as Manohar Joshi's bequest is made in absolute terms, the condition laid down by him may be void. Also, the court may hold that any condition attached to a bequest that prevents the settlement of disputes is immoral and, hence, void under the law.

Is legal assistance required to draw a will? It is a myth that a will is a complex instrument that needs legal expertise to be drawn, and a lot of time, attention and money. However, if an individual wishes, he or she may get legal assistance to make sure that the terms of the will are set out in a workable manner.

Interpretation and registration. A will should be made in simple, clear and unambiguous terms, and should be signed in the presence of two witnesses. The testator should make sure that the property referred to in the will is adequately described so as to avoid any uncertainty. The Indian Succession Act provides detailed rules of interpretation for construing vague or uncertain wills.

It is not compulsory under the law to register a will. Despite this, most lawyers will recommend that a will be registered as it gives legal sanctity to the document.

Can a will be amended subsequently? What if the testator has made two wills? The testator can change, alter or substitute a will any time. Manohar, for the sake of clarity and to prevent subsequent disputes, should have avoided leaving behind two wills.

In cases like this, the law presumes that the former will is revoked by the latter and, thus, it will be the latter will that shall prevail. One should bear in mind that the party relying on the latter will may have to prove its existence or validity in the court of law if it is disputed, as is in the case before us. Therefore, it is advisable that if an individual wants to alter, add to or explain a will's contents subsequent to having made the will, he or she should draw a separate instrument, called a codicil, to be read alongside the will.

If an individual wishes to completely change the terms of the will, then it would be wise to revoke the former will by declaring his intention in writing or by burning or tearing up the will. This will ensure that the veracity of any subsequent will cannot be questioned.

Who can be appointed a will's executor? It is advisable that a testator nominates a trustworthy person to be the executor of the will. If an individual fails to appoint an executor, then the court appoints one at its discretion. In the case before us, Manohar could have appointed Reyhan as the executor as she was of sound mind and not a minor. However, a question arises: should Reyhan have accepted the appointment as an executor knowing the facts of this case?

In my view, Reyhan may have had a potential conflict of interest in agreeing to be the executor. Reyhan was the banker of Manohar's entire family including Uddhav and Pragnya. She had various duties towards them in her capacity as a banker. By accepting the appointment in her personal capacity, she might in future be in a position where she has to reconcile between her personal and professional obligations. This will put her in a difficult position.

Thus, there are various aspects one should keep in mind while making a will. It is important that one recognises the fact that a little effort, time and devotion at the time of making the will can ensure that your loved ones are able to enjoy your hard-earned wealth or property peacefully. Failure to do this may lead to your family getting into a legal tangle, which can go on for years in the Indian courts. This makes your bequest a curse rather than an asset.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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