Issue 55 Vol III, January 15, 2008

L A W  &  J U S T I C E

Making a Will: An Intricate Matter
Joginder Singh Toor

TO make a will in India or in Canada is an intricate exercise. Will is disposition of a person with regard to his properties, a decision he has to take, and an arrangement he has to make, during his life time, with regard to his properties, and as to, who will benefit from the same, or how the income from the properties, would be utilised after his death. It involves nature of devolutions to his/her inheritors, whether absolute, limited or restricted, whether to devolve immediately or administered/managed by executors, representatives, trustees, or any other arrangement made by the testator. It involves a whole plan, futuristic in nature, precise in practise and equitable to the inheritors and beneficiaries. It should satisfy the will and wish of the executor.

A will can be made with regard to properties belonging to oneself. There are two kinds of properties, generally dealt with in a will i.e. self acquired or ancestral in nature/joint Hindu family properties, amongst Hindus, Sikhs, Jains, and Buddhists. There is no restriction on the right of the owner of the property, created or acquired by his own funds, labour or toil. He can give the self-acquired property to any person, institution, trust or organization as he likes.

The limitation as to power to make a will in India is with regard to the properties ancestral in nature/joint Hindu family properties. The holder of such properties is known as ‘Karta’ or manager of the property; he holds the property for the joint family. The son has an interest in the property by birth, being ‘co-parceners’. They have an interest equal to that of the father. The wife takes equal to the sons under the Hindu Woman’s Right to Property Act, 1937. The father has no right to make a will with regard to the interest of the son or the wife in the property. He can make a will with regard to his own share in the property. Before September 2006, the daughter’s did not form part of co-parcenery, and were not considered having any right or interest in the ancestral property, in notional partition.

So as to determine the share of the father, in the ancestral property, a notional partition is assumed in which the father, the son take equal share. The wife gets equal to the son. For example, in a property of 100 units, and the father having a wife, a son, a daughter, is considered to have one third share in the property, the wife and son also have one third each. The daughter was excluded, and on the death of the father, the interest which the deceased father had in the property i.e. 1/3, was to be divided among the wife, son and the daughter as such, the son and the wife were to take 1/3 plus 1/9 each, the daughter was left with 1/9. The father had no right to make a will with regard to the share of the son and the wife. After the amendment of the Hindu Succession Act, in September 2006, the daughters have been declared to be co-parceners, and are entitled to take equally in the ancestral/joint Hindu family property also. So in respect of the properties devolving prior to September 2006, the shares are to be determined excluding the daughters.

While making a will the testator has to take into consideration his rights in the property and the will should confine only to the testator’s rights. The will has to be in writing. It has to be attested by at least two witnesses. The testator should sign the will in their presence of witnesses and they should sign in the presence of the testator. The only exception to the rule of attestation is a person in army, engaged in war where the requirement of attestation by two witnesses does not apply. The registration of the will is not necessary under the Law.  It is optional. The advantage of registration of the will is that its authenticity is easy to prove as the testator has to sign before the registering authority also acknowledging the will, and under certain circumstances, the registering authority becomes an attesting witness. The revenue authorities  give due wait to the registered will and generally transfer the properties to the beneficiaries under the registered will to the mentioned beneficiaries, leaving the dispute if any to be settled  by the civil court. The will written in one’s own hand and attested by two witnesses, is considered to be most authentic.

In other countries, such as in Canada, the laws applicable to the state of Ontario, there are similar questions with regard to the existing rights of the other party, in the property being willed by the spouse in favour of the other spouse. The spouse is entitled to an equal share in the matrimonial home, even if there is no will, even if the matrimonial home is in the name of the spouse making the will. He or she can claim equalization. Prior to the passing of the Family Laws Act, 2005,  the Succession Law Reform Act,  1990,   provided the only remedy to a surviving spouse, who felt inadequately provided for on the death of his/her spouse to apply to the court, for an order of support, from the deceased estate i.e. a claim for maintenance. The Family Law Act now provides, the surviving spouse is entitled to an equalization of net family property on the death of his/her spouse in addition to right to support.  Section 5 of FLA provides that if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one half of the difference between them.

However, a surviving spouse is entitled to choose to receive the property entitlement under the Family Law Act or the benefits under the deceased’s will, or intestacy. The election from alternate benefits has to be done by filing an election application before the Estate Registrar, within six months from the date of death. If the survivor elects in favour of entitlement under the FLA for equalization, gifts made to the surviving spouse, under the deceased’s will, are revoked and the will is interpreted as if the surviving spouse had predeceased the testator, unless the will expressly provides that the gifts are in addition to the entitlement under the FLA. If election is made in favour of entitlement under FLA and the deceased spouse dies intestate or partially intestate, the surviving spouse is deemed to have his or her entitlement on the intestacy.  Finally, if an election is made in favour of Section 5 entitlement, life insurance owned by the deceased’s spouse and lump sum pension payments are credited against the surviving spouse’s Section 5 entitlement.

Clearly, one  must know what rights one has got in the property, regarding which he can, and he should make a will as well as the manner how the will is to be made, specifically defining the rights of the beneficiaries, absolute or limited, subject to conditions, or immediate transfer on death. It involves so many questions; it is really an intricate matter. The will should not be casually made.

[The author is a senior lawyer based at Chandigarh, jogindersingh_toor@yahoo.com]

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