Joginder Singh Toor

ONE important decision one has to take in ones life is about planning and making a will. The properties inherited from a common ancestor or from father and from those created by one self have different characteristics. Planning a will is an important factor. Pre-existing interests of the defendants and the interest which have to be created under the will have to be considered. There are certain legal requirements as to how a will has to be made. Planning a will is however ones personal decision so as to decide as to who is to inherit or draw benefits of the property.

First of all it is necessary to properly indentify the maker of the will, the testator by using his proper name.

If he is known by another name also, he be described also known as ____________. / The location/ ie. his place of residence with adequate description of his residence, the locality and the city fully detailed so as to differentiate him, in case of necessity, from others having similar name.

This keeps in knowing as to where an application for obtaining probate is to be filed because laws of different countries define differently the place, the court having jurisdiction to entertain an application and grant probate.

The proper description of place of residence, can help in obtaining certain tax advantages e.g. a person resident in U.K but domicile of Canada can obtain such advantages.

If a testator can make separate wills for properties and assets located in different jurisdictions or different countries, or with regard to properties some of which require probate and some not, He can make multiple wills according to the legal requirement for execution of wills in different countries. He should clearly mention the fact as to which properties the will shall apply and also mention the other wills he is executing regarding other properties. One can make multiple wills but not two wills regarding the same property.

Proper description of properties and the extent of testator’s interest in those properties is also to be mentioned.

One can make a will in contemplation of marriage.

Section 16 of the Succession Laws Reforms Act 1990 provides that a will is revoked by marriage but if there is a declaration in the will that it is being executed in contemplation of marriage it is not revoked. A will in contemplation of marriage can be made providing there in that it will take effect whether or not the marriage takes place.

It is not necessary to specifically state in the will that it revokes all earlier wills executed by him because the last will has the effect of revoking the earlier wills with regard to the same property. Still to be on the safe side it is desirable to mention the earlier wills and include a declaration that the said earlier wills in respect of the same property are revoked.

Wills regarding certain registered savings plans RRSPS (Registered Retirement Savings Plan) or RRIF (Registered Retirement Income Fund) or Pension funds or education plan or other benefits arising from certain plans, schemes, grants, etc, be care fully dealt with. The planning in the will entails consequences warranting immediate payment or deferred payment or savings or exemption from payment of income tax or as other fees and charges. In some cases, if not properly provided the income is counted towards the deceased owners terminal income tax return or deferred calculations in the returns of the beneficiary. The will should properly describe the over all objectives of the testator as to the tax burden to be borne, by exercising longer deferral opportunities if available.

It is always necessary to provide for an alternative beneficiary, in event the first mentioned beneficiary is not alive at the time death of the testator. If it is not provided as to who will be the next beneficiary in the event of the first beneficiary dying before the testator, the property remains the estate of the testator and devolves according to natural succession ignoring the will.

The legal representatives of the deceased beneficiary, if not named as next beneficiary do not get anything under the will. If the named beneficiary is a minor, and certain pecuniary benefits are given to him under the will, such as part or whole of the savings plan, insurance benefits etc. it is necessary to describe how the minor would draw benefits of the plans through the guardian or in some other way, otherwise the minor would be able to avail the benefits after he attains majority at the age of 18.
The question whether retirement plan issued by life insurance company or issued by non insurance company, having protection from the creditors to the benefits payable to a designated beneficiary should also be gone into. If the plan is issued by a life insurance company the creditors cannot lay a hand on it under certain circumstances.

Benefits of insurance are to be part of declaration in the will whether the children or the spouse, jointly or severally or anybody else would be the beneficiary of the insurance benefits.

A designated beneficiary or a nominee appointed in the insurance policy, has limited rights. Under the Indian law he has the authority only to collect the money for the benefit of all the decedents. The nominee by virtue of appointment does not become owner of the benefits. He can only collect for the benefit of all legal heirs or those mentioned in the will. The will prevails upon the nomination or designation in the policy.

The testator can appoint executor(s) of the will. He can be the surviving spouse as sole executor and another as alternate executor on the death of surviving spouse. The testator can appoint one or more executors who may or may not be members of his family. The person making the will is to see whether the executors would be able to give effect to his intention expressed in the will regarding the enjoyment/devolution of properties by the persons named in the will. The executors are to administer the properties assigned to them according to the manner mentioned in the will. They themselves are not to be the beneficiaries.

The testator can create a trust under the will and appoint trustees with directions as to how the trust is to be executed, by how many trustees and the manner of inclusion or exclusion of trustees in the event of given circumstances. A trust company can also be entrusted the task. The provisions of the trust act have to be taken care of.

The will sometimes requires a description clause so as to define certain words, terms or clauses of the will. Sometimes difference between child and issue, a spouse form the same sex and a spouse as husband and wife or a common law partner, if required should be properly dealt with so as to describe what interest would they or would not have in the property. The present circumstances require a difference between mother and surrogate mother, between cousin and cousin, between person from inside or outside marriage claiming through such person or a issue from denoted sperm or embryo. In case of necessity every effort should be made to define interest of each of the beneficiary to the minute extent Those who are to be excluded from the benefits of the estate, who otherwise are natural heirs, should also be mentioned and if possible the reason form their exclusion should also be given.

Ad emption is another aspect which has to be taken care of. If the testator makes a gift under the will of a specific asset or article to any person, but the asset or gift is destroyed or disposed of by the testator during his life time, the gift adeems and the beneficiary does not get anything in the absence of clause in the will that he would alternatively take something else.

The will takes effect on the death of the person. Sometimes the executor and the beneficiary die at the same time such as in air crash, cyclone or fire etc.. The question arises who died first because the rights under the will depend upon this question. Under the Indian laws there is presumption that one who was older in age is to be presumed to have died first. But under the Canadian Law in the Province of Ontario, the one whose will is being dealt with is presumed to have survived the other.

If both the spouses execute their respective wills in favour of each other with similar clauses it is known as “mirror will”. While drafting a mirror will the interest of both, surviving one or the other, are to be clearly mentioned.

Only one original should be prepared. If two are prepared and both are signed by the testator and both are attested by the witnesses at the same time the one signed first becomes void as the will signed last in point of time is to prevail. The last will supersede all earlier wills.

The person who makes the will (the testator) should sign in the presence of witnesses and the witnesses should sign in the presence of the testator.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court, jogindersingh_toor@yahoo.com Mobile 91-98151-33530]

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