Disposition of Property by Will

Disposition of Property by Will
S.R. Agarwal
If a person is conscious that after his death, there should not be any dispute amongst his legal heirs for the succession of his property and if he is concerned to cater to the special needs and requirements of his family members such as, handicapped, or financially weak children or infirm parents and he does not want to leave his better half at the mercy of his children, he should right now seriously think of making a will, for suitable disposition of his property, both movable and immovable. This type of succession is governed by the provisions of the Indian Succession Act and known as `Testate Succession’, as against `Intestate Succession’, wherein the law takes its own course and in case of Hindus, property of a deceased is inherited as per the provisions of the Hindu Succession Act by all his class-I legal heirs in equal proportion.
There is a lot of misconception in the minds of the people about the mode and manner of making a will and that it may be an intricate exercise which need some expert to draft it and stamping and registration may be necessary and so no. But the fact remains that the disposal of the property by way of a will is the easiest , simplest and cheapest form to take care of the wishes of the deceased, who is known as the `Testator’ and the beneficiaries of such a will as the `Legatees’. A will is nothing but merely a declaration made by a person during his life-time for the succession of his property after his death and such a declaration is legally enforceable document.
The requirements for making a will is that the person making a will should be major and capable to dispose of his property with sound mind and make the will voluntarily and out of his own sweet will devoid of any undue influence or coersion. In fact, he should be in such a state of mind that he comprehends, as a man of ordinary prudence, the complexity of such an action. There is no particular format of a will prescribed by any legislation. In case of Hindus, a will has to be in writing and could be in respect of the whole or part of the property, as against the Mohammedans who are permitted by their Personal Law to make an oral will, but can not dispose of more than 1/3rd of the Property by way of will without the consent of their legal heirs.
A will in writing by a Hindu has to be signed (legally known as executed) by him on each page and attested by at least two witnesses, who must have seen the Testator singing the will and each of them should sign in the presence of th Testator. Such a will is not required to be executed on a stamp paper of any value and its registration is not compulsory, but optional as per Section 18 of the Indian Registration Act. Nevertheless it should contain the relevant particulars, such as the name and address of the Testator to establish his identity, details of the beneficiaries and the property assets owned by him and, most importantly, the mode and manner of the distribution of the same amongst the beneficiaries. It may be drafted in the language of the same amongst the beneficiaries. It may be drafted in the language best understood by the Testator to express his feelings and the wishes and any ambiguity therein should be avoided and a person of his confidence be appointed as the `Executor of the Will’ to carry out his wishes after his death.
Property for distribution by way of will could comprise of his self-acquired property, as well as undivided co-parcenary interest in HUF property, and the same could be disposed of in its entirety or part thereof. A Testator, if so wishes, can leave his entire estate to his wife for enjoyment during her lifetime and after her death, to be distributed to the remaining legal heirs as per his directions. He can even bequeath the same for religious and charitable purposes. In case of the property acquired or accrued to him after the execution or the will, he may include the same by way of a general clause and for including such acquisition, there is no need to change the will again and again. A will is made during the life time of a person, though it takes effect only after his death, as against a Gift, which takes effect immediately on the execution of the Gift Deed. In the case of a Gift, he looses control of the gifted property, whereas in case of a Will, as the circumstances unfold with the passage of time, he may revoke or alter or change the same from time ti time to take care of the changed circumstances vis-a-vis his wishes and it is only the last will, which is legally enforceable. However, utmost care has to be taken that the will is duly executed and signed on each page by the Testator in the presence of minimum two or more attesting witnesses, and each of them should sign in the presence and direction of the Testator, as one of the main legal requirement of a valid will.
In case of dispute, a will is, generally, contested on two main grounds i.e. the Testator, while making the will, was not in a proper and sound state of mind and/or his signatures thereon were forged and not genuine. With a view to reducing such a possibility, it would be advisable to choose the attesting witnesses comparatively younger in age to the Testator and one of them happens to be the family physician of he Testator and the will is registered, through not mandatory in law. Because if controversy is raised on the basis of these ground. There could be sufficient admissible evidence that the Testator, while making the will, was physically, mentally fit and in such sound state of mind so as to fully capable of understanding the complexities of his action and his signatures were genuine and not forged, as he had appeared before the Sub-Registrar to admit the execution of the will and these precautions may take care of such frivolous allegations by vested interest in the present day environment of disintegration of joint family system and the degration of the values in human behavior for sympathy, support and sacrifice towards at least own family members. The most important point to be kept in view is that the attesting witness should be so carefully selected that at least one of them is available at the relevant time to depose against all the grilling that the Testator was in a sound state of mind and had executed the will in his presence and the other witnesses out of his own will and whom he had seen attesting the will in the presence of the Testator.
In the ultimate analysis, a properly executed will over-rides the provisions of the Hindu Succession Act and in the words of the Hon’ble Supreme Court of India, a will is a most solemn document to take care of the wishes of a person about the disposition of his property, so that his soul may rest in peace, provided he has been intelligent enough not to disclose its contents or pass on a copy to any one in his life time, otherwise his life may become miserable until he breaths in his last.