By M.C. Linthoingambee
Being old does have its fair share of assets and liabilities but for some, it is a different story. “I am still earning for my kids. I will leave whatever I have to them,” said Kamal Goswami, in his 80s who is a carpenter by profession. His happiest and saddest memories are engraved in his craftsmanship as he is still very much engaged in the profession currently, wherein the artistry was introduced to him by his own father when he was just a little boy. His days are centered around fixing doors, carving artistic woodwork and more so where he contends that the work shall go on continuously. In the prospect of pre-fixing some of his last rites he approached us with the prospect of leaving behind a will in due course of his survival. In words, Will is the legal declaration of a person’s intention which he wishes to be performed after his death and in addition, when a will is made by the testator (person in whose name will is being made) the process of its revocation if so intended can only be done during his lifetime. In a more statutory backing, Will is defined under section 2(h) of the Indian Succession Act, 1925 stating that it is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A testator is authorized with a power to appoint any person as beneficiary of his will where about alongside lay Section 5 under the same act which deals with the law regulating the process of succession to a deceased person both in terms of moveable as well as immovable properties.
Is writing up a will ever so foreign to us? Although, Will registration is not a compulsory process in India it is a must do regime to get our wills drafted and registered, this principle of registration of wills is continuously getting more and more applaud increasingly in the modern day. It ascertains what part of your property goes where and to whom and so forth. Succession Planning as one might say is determination of transfer of wealth to the people you choose keeping in view of the minors and weak in the hope of preventing any family disputes which may arise due to confusion in transfer of wealth which can be done through wills, corporate entities and trusts. In a short long view, one might add on to say, “I would like to give 10 mango trees to my eldest son, 30 apple trees to my daughter and 10 lemon trees to my younger son and the rest of the 50 guava trees to my wife and the remains of the usufruct as stated,” this division in sort of way insures that each member of the family left behind by the husband shall get their rightful share of the property and since all manners and transfers have been carefully adhered to with rightful regard of preventing any sort of family dispute which may arise due to division of property or wealth. But due to an uncertain turn of events, one dies without making a will (intestate), his wealth is immediately inherited by the heirs according to the Inheritance Laws: Law of Succession with special effect to that person’s religion. These religious laws embedded on our forefront legislation makes inheritance a complicated issue in India thereby causing family disputes and the unfolded desk filled with piles and piles of read or unread files raised through such disputes. The likes of the Indian Succession Act thus applies to all communities except for the Muslim Community. Even though the succession laws are properly drafted and coded, each have a small crack in the wall making it an exceptional applicability of law for the Hindus, Buddhists, Sikhs, Jains, Parsis and Christians.
The likes of the wills and conducts of the same for the Muslim Community are vehemently governed under the structure of the Muslim Personal Law. Should I be writing a will now? There are no fixed timings to deliver a certain will nor are there any fixed formats to write one up. It can be written on a plain paper simply but certain considerations lay for its validity. The law states that a will becomes valid only when it has your signature or thumb impression and has signatures of two witnesses certifying that it is your will adding further that it must only be made when you are sane and free from any duress or undue influence with the exception that a minor cannot do the same act of disposing property through wills. As a safety net, it is often better to register wills in the registrar’s office or through the executor or beneficiary after the testator’s lifetime ends since it is kept in safe custody of the registrar and cannot ordinarily be tempered with, destroyed, lost or stolen.
The last wish of a man is an untold mystery of serving happiness to those he is survived by in the hope of that his achievements may continue to grow and unfold. This is his way of delivering goodbyes.
(M.C. Linthoingambee is an undergraduate pursuing B.Com. LL.B(H). An avid blogger, poet, a seasonal artist and a foodie, she is also a life member to the Indian Society of the Red Cross.)