Moneylife Foundation invited Advocate Bapoo Malcolm explain to a packed house of over 80 attendants the practical aspects of preparing a will. Over the course of the interactive two-hour session, which mostly consisted of participants asking a string of questions, Mr Malcolm covered privileged, holographic and joint wills, registration, litigation possibilities, executors and intestate problems
It is common to postpone the making of a will. Perhaps you have some personal reasons for doing so, but if you’re doing so because you’re under the impression that the procedure is complicated, you couldn't be further from the truth. At Moneylife Foundation’s 160th seminar, Bapoo Malcolm, a very well experienced lawyer in both civil and criminal matters, said, “A Will should be a simple document. Preferably, it should be in simple language, not legalese, and give specific instructions about what is to be done with the movable and immovable properties you own and the property you will perhaps acquire in future after your death. It would be best if it read like a balance sheet. Just specify the property and the person. Be as specific as possible.”
Mr Malcolm said that grammar is what most of us forget about when we write our Will and that could be a disaster. He said, “If I were to write my Will in Marathi or Hindi, it would be a disaster. But if I did so, I would get it checked. Grammar is very important when you write your Will. A comma here and a plural there could change the meaning significantly. Remember that a Will is basically you speaking from the grave. Obviously you cannot answer any further questions when the Will has to be interpreted. So it will all be interpreted according to the word of the law, which may not assign the same meaning as you intended.” Immediately after this, one participant read out from a Will he had drafted. Mr Malcolm instantly pointed out grammatical errors and spotted ambiguous language.
The basic requirements of a Will are easy to even commit to memory. Mr Malcolm 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 will them to after your death.” Remember, however, that you can only bequeath what belongs to you and what is self-earned; otherwise the distribution is governed by various Succession Acts.
There appeared to be several misconceptions about the making of a Will. One was that a Will needs to be registered. Mr Malcolm cleared the doubt. He said, “The government does want to encourage people to make Wills, so they haven’t made it compulsory to register a Will. You can even make a Will on a serviette. So long as the basic requirements are fulfilled, the Will is legal. Registration is a grey area, mainly because if you then wish to make a second Will, you may not have the time to register it. If you realise the day you die that a relative is useless, you may not be able register this second Will. Then does the unregistered Will have more value than the registered one. Registration, however, takes care of the safety issue. An unregistered Will could easily be lost. At least if it is registered you know that it is always in some government ward.”
Participants were also unclear about whom to appoint as an executor. One participant, for example, asked whether it was necessary to have an executor in the first place. Mr Malcolm answered, “Of course you need an executor. Without the executor, who will execute the Will? If you expect your children to do this, why not just name your children as the executors? If this is not done, the court will appoint someone and there is no need for this.”
Mr Malcolm also delved into the differences in the laws that apply to Sunni Muslims. He said, “I think the law that applies to Sunni Muslims is a fantastic one. They can gift away a third of their property to anybody they want, but the rest must be given to the family. In my opinion, this is good.” A Sunni Muslim man in the crowd then asked a few questions on how to share the property equally between his two children, a son and a daughter.
Nominations are areas of confusion. Mr Malcolm advised participants to have joint accounts with those who they have, in fact, nominated. He said, “If there is a nominee, the transfer becomes complicated. If there is a joint account holder, there are no questions asked. The joint holder has full access to the account, so nothing can stop him from withdrawing money from the account.”
It was only at the very end of the seminar that Mr Malcolm found the time to discuss the presentation he had prepared. He gave participants the proper definitions of terms, such as codicil and testamentary guardian, and explained in detail what a probate is.