A will is a simple document, to be written in simple language. Avoid legalese, explains advocate Bapoo Malcolm
In an interactive session at Moneylife Foundation, advocate Bapoo Malcolm explained, to a full house, the practical aspects of making a will and the importance of registering it.
Mr Malcolm explained the implications of registration, the possible disputes that can arise out of bad drafting, and the importance of selecting witnesses and executors. His talk was peppered with anecdotes and cases that he had come across or handled personally.
Mr Malcolm started with a quick overview of the basics of a will including the meaning of legal terms such as testators, codicils, executors, probate, administrator and how succession and inheritance differs based on religion and personal law.
He touched upon different types of wills, such as joint wills, contingent wills, etc, but said he was personally against needless complications. Each person must make a simple and separate will that is clear and concise, leaving no room for misinterpretation. “A will would be interpreted according to the word of the law, which may not assign the same meaning as you intended.”
He said: “A will can be made by any person who is not a minor and who is of sound mind. You need two witnesses, preferably independent of each other. The will must list all the immovable and movable properties you own and who you wish to bequeath them to, after your death. However, remember, you can only bequeath what belongs to you and what is self-earned; otherwise, the distribution is governed by various Succession Acts.”
There was an animated discussion and many questions on probate and whether it could be avoided as also the importance of registration and the advantage, if any, of gifting assets in one’s lifetime rather than bequeathing them through a will. As always, in such cases, the best option depends on the specific circumstances of each person. Registration of wills emerged as a grey area for several reasons. Banks and registrars for financial assets usually do not demand a probate in case there is a registered will. But what happens if a person wants to change a will. While some lawyers say that every change or codicil also needs to be registered, Mr Malcolm said there is plenty of case law which says that a newer will need not be registered when the earlier one is revoked.
Mr Malcolm said, “The government wants to encourage people to make wills, so they have tried to keep the process as simple as possible.”