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Moneylife » Life » Moneylife Events » A comprehensive Will is the only way to handle your legacy

A comprehensive Will is the only way to handle your legacy

Moneylife Digital Team | 24/09/2011 03:40 PM | 

sdisrani

Dr SD Israni, advocate & partner, SD Israni Law Chambers, spoke on the need for preparing a comprehensive Will and explained how to complete all the requisite nomination & transmission formalities

"Many of us keep postponing the day of reckoning. But it's imperative that you have to leave behind a comprehensive Will. So better start thinking about it," said Dr SD Israni, advocate & partner at SD Israni Law Chambers. He was speaking at a seminar on Wills and nominations, organised by Moneylife Foundation on Saturday, 24th September.

Drawing from his long experience, Dr Israni talked about how to prepare a comprehensive Will, and how to complete all the requisite nomination & transmission formalities for both movable and immovable properties. He explained terms like probate, transmission and nomination, which play a crucial role in matters regarding shares and other assets.

The main elements of a Will are the name and identity of the author/testator, two witnesses and their addresses, the list of assets and their distribution. This must be signed by two witnesses and the testator in the presence of each other. He said, "A codicil is a part of the Will, which comes into play if some minor changes are to be made. If you have to make major changes, like naming a different heir, make a new Will."

The religion of an individual matters for succession under the Hindu Succession Act, Muslim personal law, Parsi personal law, Christian law and for others by default under the Indian Succession Act. When asked about assets which are not mentioned in the Will, he said, "Assets or shares, etc., which are mentioned in the Will automatically go to the successor as per law, or stay with the nominees or owners specified."

Dr Israni explained the difference between being a nominee and an heir in case of transmission of shares. Traditionally, it was understood that a nominee is like a trustee, who has to transfer the shares to the legitimate heirs or claimants. However, last year, a Bombay High Court ruling said that a nominee can possess the shares like an heir unless an order is issued in favour of the heir. "This kind of misbalances the legal interpretation," he said.

However, in such a case, if the shareholder has already willed his shared to an heir, the nominee's claims will be overridden. But for that, the claimant has to prove he is entitled to those, and has to have the Will probated.

When asked about immovable properties held jointly, he said, "The nominees all have shares in that property. So if they want to sell it, they have to come to a conclusion together and then go for stamp duty that is associated with normal property sales. In some other aspects, the cooperative society can have a say-but ultimately, if there is a dispute, the matter must be settled in court."

Dr Israni said, "Young or old, one must make a Will. If one leaves a clear, simple, attested Will which clearly specifies whom he wants to give what, then legal hassles can be avoided. All you need is a piece of paper and two witnesses."


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10 Comments
R Nandy

R Nandy 1 year ago

I am fully not convinced by the last line of the article " all you need is a piece of paper and 2 witnesses" . Should it at least not be written on a stamp paper and notarized? Notarization might be useful in case there is any signature mismatch or the will is disputed in court.Any legal opinion on this with examples of case citings will be highly appreciated.

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Govindan

Govindan 1 year ago in reply to R Nandy


It is better if the Will is registered. Moreover, the Will should be witnesses by a doctor and a lawyer. Two more witnesses are required for Sub-registrar’s office. Make it sure that the witnesses are persons of integrity.

The Will can be cancelled at any time by the Testator. A registered Will can be cancelled by an unregistered Will.

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PKMukherjee

PKMukherjee 1 year ago

I feel sorry ,I could not attend the session of Dr Israni on 24th Sept.
Can I have a CD of his talk . Is it possible to get the format of a Will from him ?
I am willing to pay for the same .

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R Nandy

R Nandy 1 year ago in reply to PKMukherjee

Sample of wills are are available here.
http://foundation.moneylife.in/section/7...

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Govindan

Govindan 1 year ago in reply to R Nandy

Please keep in mind:

After the death of the testator or testatrix, the legatees/beneficiaries has to prove that at the time of writing the Will the divisor had a "Sound disposable state of mind", if disputed in a court of law.

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Govindan

Govindan 1 year ago in reply to Govindan

Please keep in mind:

After the death of the testator or testatrix, the legatees/beneficiaries has to prove that at the time of writing the Will the Devisor had a "Sound disposable state of mind", if disputed in a court of law.

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R Nandy

R Nandy 1 year ago in reply to Govindan

But,how to prove the "sound disposable state of mind " of the devisor during the time of writing of the will?Should a medical report generated at the time of writing the will certifying the sound medical health of the devisor be attached with the will?

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Govindan

Govindan 1 year ago in reply to R Nandy



The onus of responsibility rests with the beneficiaries that the Devisor had a "sound disposable state of mind" at the time of making the Will. Suppose a Testator attaches a medical certificate along with the Will to prove that he is having a sound disposable state of mind, our lawyers will challenge that certificate also in Court !

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Govindan

Govindan 1 year ago


Dr. Irani Saheb says "Preparing a comprehensive Will in the correct manner is crucial if you don't want your heirs fighting over your legacy".

I think whether the deceased dies testate or intestate legal heirs do quarrel. I know the children of a lady who bequeathed all her property through a registered will. Two of her children quarreled and their lawyer advised them to dispute the will! (I think our lawyers have a tendency to advise their clients to dispute legal testaments). After a prolonged and bitter legal fight the genuineness of the will was finally upheld.

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Sundaram

Sundaram 1 year ago in reply to Govindan

Well said,Mr.Govindan.Finally it all boils down to the understanding and good relationship that exists between the heirs/legal claimants.

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