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How to make a will that is tamper-proof

February 03, 2014 11:55 IST

Photographs: Sherwin Crasto/Reuters Neha Pandey Deoras

Here are ways to ensure your children and other legal heirs don't tear at each other when you're gone.

Last week, the Bombay high court (HC) adjourned hearing till March 10 the dispute between two sons of the late Bal Thackeray over their father’s will. On that date, the court will hear an interim application filed by Jaidev Thackeray to restrain younger brother Uddhav and other executors from alienating the properties in question. The HC posted to April 7 the question of framing of issues in the case.

It appears Bal Thackeray signed his will nearly a year before he died on November 17, 2012 (that is, in December 2011). Uddhav, third of four sons, had moved the HC for a probate of the will. According to reports, a copy of the will which is attached with his petition says Bal Thackeray had appointed Uddhav, Sena leader and lawyer Anil Parab, former Sena MP and noted lawyer Adhik Shirodkar, architect Shashi Prabhu and his personal assistant, Ravindra Mhatre, as executors of the will. Jalil Parkar, his personal physician, is the witness in whose presence Bal Thackeray had signed the will.

The court certified the will as valid in the probate petition. But then, Jaidev, the second son, objected last June. There is no clarity on whether this will was registered or not.

Even if it was, it might or might not have helped Udhhav Thackeray’s case. Uddhav Thackeray’s lawyer, Parab, did not respond to phone calls or text messages.

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How to make a will that is tamper-proof

Photographs: Uttam Ghosh/Rediff

Registering a will

Even if not mandatory, it is a good practice to register a will, especially if immovable property is part of what is being bequeathed. Several authorities, such as the municipal corporation, insist on a registered will to transfer immovable property to legal heirs. The registration can be done at the office of the registrar or sub-registrar for a nominal fixed amount. The custody is with the registrar’s office. A will can be written even on plain paper and registered. No stamp duties are payable for writing or registering a will.

“Registering a will is not mandatory. It only authenticates a will but it can be contested,” says R N Gupta of SN Gupta & Associates.

A registered will can be modified only by a codicil, a supplement to a will, or by a fresh will. Both these must be registered to be considered valid.

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How to make a will that is tamper-proof

Photographs: Uttam Ghosh/Rediff

If not registered

To be able to transfer property, if a will is not registered, it requires a probate or succession certificate from the court.

The cost of getting these might run up to four per cent of the property value. In the Thackeray case, Uddhav had filed a probate petition in the HC, which got contested by Jaidev; it has now become a dispute or suit.

Says Bheru Choudhary of IC Legal, those who own assets in Mumbai, Chennai and Kolkata, irrespective or whether or not they stay in these cities, require the executor of the will to take a probate.

A probate proves the will is genuine. “When a probate petition is filed, the court asks its officer(s) to make a citation to all the heirs of the deceased. If any heir has an objection, they can file a caveat in a certain time period after filing probate petition. Then such cases become a suit,” he explains.

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How to make a will that is tamper-proof

Photographs: Uttam Ghosh/Rediff

Problems in unregistered wills

In the Thackerays’ case, Jaidev objected to the point in Uddhav’s petition that the properties and bank deposits willed by his father were valued at Rs 14.85 crore (Rs 148 million). He said the Bandra bungalow where Bal Thackeray lived was alone worth Rs 40 crore (Rs 400 million). He also noted the Shiv Sena Bhawan and party mouthpiece Saamana’s office had not been added to the list of family properties.

This apart, Jaidev questioned the language in which the will was written, English. He says Bal Thackeray fought for Marathi through his life and could never write his will in English. The will has Bal Thackeray’s signature in Marathi.

Lawyers say these points — wrong valuation of assets, non-inclusion of a few assets or language — cannot be used to set aside a will. These could at best be used as circumstancial evidence to prove the will was forged or not original.

“Wills can be challenged on grounds like it has not been attested by at least two people, if proved that witness(es) were not present when the testator signed or if proved that the will was not signed by the testator at all or if the testator was not mentally fit to make a will,” says Choudhary.

Lawyers say in Bal Thackeray’s case, he was not mentally unfit in his final year (2011-12), only physically weak. Additionally, even if he propagated the use of Marathi, he knew English. So, he could choose to make his will in English. Hence, Jaidev’s contention on the will not being original might not stand.

“In such disputes, the one contesting the will has a bigger job to prove his point than the defender,” says Gupta. Proving the testator was under pressure or influence to pass on more wealth to any one person is very difficult. A doctor can be of help if one has all the health reports of the deceased.

An example is the Priyamvada Birla-Lodha case. Lawyers say as Birla was lonely and unwell in her last days and only Lodha took care of her, there are chances that she might have been influenced to give a him a share in her assets. But proving it will be very difficult.

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How to make a will that is tamper-proof

Photographs: Uttam Ghosh/Rediff

It is also so with proving the properties valued in the will are wrong. Especially when the will  is not made very close to the death of the testator. Some lawyers note out the Rajesh Khanna case, where his will mentions the value of his Juhu bungalow at Rs 20 crore (Rs 200 million), when Anita Advani (with claims on the estate) has said it is worth Rs 100 crore.

The intention of the testator is what the court will go by to come to a conclusion, adds Gupta. For instance, if a will says “I wish to distribute my assets equally between my sons”, the court will see the value of the property on that day and distribute it equally between the children. If a will says, “I wish to give my property worth Rs 20 crore to my wife and divide my other property worth Rs 20 crore equally between my children”, the court will conclude the testator’s intention was to leave something for his wife.

Similarly, some write, “I wish to give my bigger house to my son and smaller house to my daughter”, the court will conclude the daughter was not supposed to get more.

As for Jaidev Thackeray’s point about non-inclusion of certain assets, these may be looked at and decided upon in line with Section 8 of the Hindu Succession Act, 1953. This says the property of a Hindu (male) dying intestate (without a will) shall be passed on to heirs, agnates (descended from the same male ancestor) or cognates (blood relative, especially on the mother’s side) of the deceased.

“Typically, lawyers put a residual clause in wills, which says ‘all properties at the time of my death will be bequeathed’. If there is no residual clause and some property has not been included, the court considers it under the Hindu Succession Act and distributes accordingly,” says Choudhary.

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How to make a will that is tamper-proof

Photographs: Uttam Ghosh/Rediff

Hence, it helps to have a videographed will, says Gupta, as it is also a permitted document in Court (see box: How to avoid disputes over your will).

Key terms to know:

Testator: The person who makes a will

Executor: The person who is responsible for dividing the testator’s wealth among the beneficiaries

Dying intestate: To die without making a will

Probate: The official proving that a will is authentic or valid by the court

Agnate: Any male relation on the father’s side

Cognate: A relation by blood or descended from a common maternal ancestor

How to avoid disputes over your will

Once you’ve made a will, show it to your children/beneficiaries

Take a consent letter/ affidavit from them, saying they have seen the will and they agree to it

If not, then make sure the will is registered

Have at least two witnesses (called attesting witnesses) at the time of signing the will

Take an affidavit from attesting witnesses about the same

Attach affidavit to the will

Suggestions by Ameet Hariani, managing partner, Hariani & Company

Source: source