Ensure that your will is watertight

A recent judgement says the beneficiaries should prove the will is correct

If you have been putting off making a will, remember that your heirs could face problems after your death. In the absence of a clear will, questions can be raised about the stability of the testator (the one making the will). There have been several cases where heirs have lost wealth that could have been theirs had the testator taken adequate care while drafting the will.

Here is one that came up before the Chandigarh District Court and was decided in July 2013. Those keen to seriously implement succession planning should note the key features. In the case, Raja Harinder Singh, the erstwhile ruler of Faridkot state, died on October 16, 1989 leaving behind three daughters as his legal heirs. His only son had predeceased him (in 1981). After his death, his registered will (dated 1982) was produced before the legal heirs. According to this will, his entire estate devolved onto a trust, whose trustees had been appointed by the raja. The trustees included his two daughters and some of his employees. The primary purpose of the trust was to look after the buildings and other movable properties of the deceased raja.

However, the will excluded any benefit to his eldest daughter. In the light of this, the eldest daughter filed a suit against her sisters and the other trustees claiming that the will was forged, fictitious and fabricated, that it did not inspire any confidence and its execution was replete with suspicious circumstances. The ruling pronounced by the district court brought out some remarkable facts. These should be noted by individuals for their benefit.

Proof of validity
Unlike other documents, a will takes effect from the death of the testator. Hence, when it is produced before a court, the testator (who has already departed from this world) cannot say whether it is his or not. As a result, while dealing with proof of wills, the courts begin in the same manner as in the case of proof of documents. The producer of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the time was in a sound state of mind, and that s/he understood the nature and effect of the dispositions and had affixed her/his signature to the document of her/his free will.

Witness selection
Witnesses to the will should have had a cordial relationship with the testator and should definitely not be complete strangers. Besides the relationship with the testator, sufficient evidence should exist to prove that the individual could have been chosen by the testator as his/her witness. Witnesses to a will should not be direct or indirect beneficiaries, as that could be construed as undue influence on a testator.

Maintain uniformity
Although there is no legal requirement whether the will should be hand-written, type-written or computer printed, whichever mode the testator opts for should be uniformly followed. The individual should not keep blank spaces for important elements in the will such as the date of the will, values of certain bequests, etc.

Registration isn't enough
Merely because a will is registered does not make it sacrosanct. Many judicial precedents are available in which registered wills have not been acted upon. In these, it has been held that registration of a will may take place without the executors knowing the contents of what was being registered. If a will is to be registered, appropriate evidence must be made available to demonstrate that the testator had been to the office of the Registrar. Where registration is done at the testator's residence, a clear trail of the request to register the document at a place other than the Registrar's office should be maintained.

Explain exclusions
In the case mentioned above, as the eldest daughter was not conferred any benefits by her father in his will, it was contended before the Court by the daughter's legal counsel that the daughter enjoyed very good relations with her father, and vice versa, and had cared for him. There were no reasons recorded by the testator in the will to exclude her from any benefits. The judge accepted this contention while deciding the case. Although it is not legally required to quote reasons to exclude any beneficiary in one's will, if an individual wishes specifically to exclude any heir(s) or restrict benefits to them, it is advisable to clearly record the reasons.

Based on the above factors in the said case, the Court ruled that the alleged will of the raja produced by his two other daughters did not appear to be a genuine document and had given rise to a large number of suspicious circumstances. From this, it could be inferred that the will was invalid. It took 20 for the eldest daughter to get justice.

Ensure that your hard-earned wealth passes on peacefully to the next generation without any delay.

The author is a Chartered Accountant

THINGS TO REMEMBER

• Producer of the will must prove that the testator was in a sound state of mind while signing it
• Witnesses should be known to the testator and they should have a cordial relationship
• Will can be hand-written or typed, but should be uniform
• Avoid blank spaces for elements like data, value of bequests
• Even a registered will can be disputed
• State proper reasons for excluding heir from the will