All You Want To Know About "Wills"

Sir John Salmond, the acknowledged authority on jurisprudence has in a statement which I consider as locus classicus said that "Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representation is in some sort identified by the law with him who he represents. The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria persona fulfil, he owns, exercises and fulfils in the person of a living substitute. To this extent, and in this fiction, it may be said that legal personality of a man survives his natural personality, until his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for". A will is a very important basic document in the whole conspectus of inheritance. The importance of a will is often undermined or ignored by individuals and they therefore shy away from making a will, probably in the belief that things and situations have the inbuilt ability to resolve themselves. The consequences of a person dying intestate are many. The first one is that in such a situation, the estate is in a state of flux. Secondly that there could be a danger of some document purporting to be a will being produced, which could lead to a lengthy court battle, ultimately having the effect of siphoning off the estate and or depletion of the estate, into whomsoever's hands it ultimately reaches. Thirdly and most importantly, the person who was to make the will i.e. the prospective testator has lost the legal but voluntary right and to distribute his estate by a will, to whomsoever he chose to, within the bounds of the law and therefore the consequence being that in the case of an intestate, the law takes over and the distribution therefore takes place as per the law applicable to the deceased. In preparing a will for an individual, the lawyer, or advisor has to keep certain aspects in mind. India is a country where in cases of marriage and succession personal laws have primacy. They are, so to say, intertwined. The lawyer must therefore be mindful of that fact. The reason for this is that if, say a will is to be prepared for a person following a particular religion and governed by a particular personal law, the personal law of the person must be kept in mind while drafting the will. If this is not done, the bequests in the will or part thereof are in danger of being set at naught by legal process. To illustrate, if the will is that of a Hindu, and if such Hindu has an interest in coparcenery property, the will can validly dispose off his interest in the property. This much is evident from a reading of section 30 of the Hindu Succession Act. The rider here being that such person cannot dispose off the whole of the coparcenery property, but only that much over which he or she has a right. By this, it means that a coparcener can deal with his probable share and not a specific property or properties of the coparcenary, for a person cannot dispose off what does not belong to him. Even a will cannot transgress substantive and procedural requirements of the law , therefore, some basic concepts regarding wills need to be discussed. A will indicates how and in what proportion and manner, an estate is to be distributed. It tells the executors appointed under the will as to act as per the bequests in the will to carry out the wishes of the testator. Wills fall within the realm of what can be called private voluntary legislation. Some terms as to Wills would be significant here. A Will is the legal declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death. In other words, a Will or a Testament means a document made by person whereby he deals with disposition of his property, but such disposition obviously comes into effect upon the death of the testator. Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. A codicil is used to make alterations to the will. An important caveat here. A testator can choose to either execute a codicil or may execute a new will altogether, but must clearly indicate in the new will that the former will or wills executed earlier are cancelled . Executor is the legal representative for all purposes of a deceased person (testator) and all the property of a testator vests in him or her until the property is divided and distributed amongst the heirs and other persons to whom it has been bequeathed. It is the duty of the testator to deal with the directions in the will and distribute the estate according to the bequests. An executor may or may not be one of the beneficiaries under the will. Beneficiary or Legatee is a ...

All You Want To Know About "Wills"

Satyajeet A. Desai

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