Thursday, April 22, 2010
Saturday, March 27, 2010
Where there’s a will, there’s a relative!!!! Writing a will is not as easy as we normally think. It is one on the most technical documents. How to make a will?
"Will" means the legal declaration of the intention of a testator (person writing the will) with respect to his property which he desires to be carried into effect after his death.
Who can make a will? Any person who is a major (18 years or above) and with sound mind can make a will.
Will has no automatic validity, it has to be proved before we can exercise rights conferred by it.
Will has to be in writing and it cannot be oral. Will need not be registered. Whether the will is registered or not the will has to be proved.
Will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witness shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. Whether the execution of the Will is admitted or denied, it is necessary to call an attesting witness in proof of the execution of the said Will. Under no circumstances the proof of execution of the Will is dispensed with in law. It is only after the Court is satisfied that all these tests are successfully passed, the Court can declare that Will is executed in accordance with law, then the will becomes enforceable. Witnesses must be independent witnesses. The witnesses should not be the beneficiaries under the will because it may become a suspicious circumstance.
How should the testator and the attesting witnesses sign? The testator shall sign or shall affix his mark to the Will. The signature or mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will, or has received from the testator a personal acknowledgement of his signature or mark; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
There is one important feature which distinguishes wills from other documents. It is one of the most solemn documents known to law. Through it, a dead man entrusts to the living, the carrying out of his wishes. As it is impossible, that he can be called either to deny his signature or to explain the circumstances in which it was made, it is essential that trust worthy and effectual evidence should be given to establish the Will. Therefore, unlike other documents, the Will speaks from the death of the testator. It is ambulatory and it becomes effective and irrevocable on the death of the testator. Therefore courts always look upon the will with suspicion. In the case of Wills, apart from proof of the documents, additional factors have to be satisfied, before the court could declare a document styled as "Will" is proved. There must be no suspicious circumstances.
What are suspicious circumstances? There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. Few examples include:
a) The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's (person who proposes the will in the court) case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature;
b) The condition of the testator's mind may appear to be very feeble and debilitated;
c) Evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator;
d) The dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances,
e) The will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind.
In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. Unless all legitimate suspicions are satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent pan in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.
How is will interpreted? A will is interpreted by applying "Arm Chair Rule". In construing the will, 'the arm-chair' rule is to be applied and the courts are expected to place themselves in 'arm-chair' of the testator and find out his intention. It has been stated that in construing the Will, the intention of the testator is a polar star by which the courts should be guided and it is the duty of those who have to expound the Will. In other words the first thing for consideration always is what was the testator's intention at the time he made the Will and then the law carries out that intention into effect. Although a will speaks from the death of the testator, in construing the will the court should determine the facts and circumstances respecting the testator's property and family and things as at the date of the will in order to put itself in the chair of the testator so that effect to the words in the will and meaning to be assigned to them could be ascertained without taking into note the evidence or circumstances which came into existence after the will was written.
A person writing a will must be of disposable state of mind. This means the person must be able to rationally dispose his property and dispose of his heirs. A person who is sick, influenced, threatened and so on is not said to be in his disposable state of mind.
Will once written can be revoked any time by the testator. A registered will can be revoked by an unregistered document. Will made can be altered anytime. The latest will shall prevail is the law.
a. A has three children B, C and D. A wants to dispose all his properties to D. A writes a will stating that all my properties shall go to D giving the particulars of his properties. If A doesn’t mention about his other children B and C, then it becomes a suspicious circumstance. A must mention about B and C and must say the reason why he is not giving it to B and C. The will must not only dispose A’s properties to D but must also dispose of B and C.
b. A is a ninety year old man suffering from various diseases. He has a child B. A is admitted to a hospital and he spends few months in the hospital and dies. In the hospital a nurse C takes very good care of A. A writes a will giving all properties to C. The will normally be turned down because of his mind might be very feeble and debilitated and he was not with a disposable state of mind.