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N. R Moorthy

A WILL must contain the name and address of the executor/trustee appointed by the testator; describe the properties being bequeathed and their location; state the manner of acquisition of such property, that is, self-acquired or inherited; and mention the exclusive right of the person to deal with such assets.

If the testator has only lifetime use of the assets and property having been conditionally bequeathed under another Will, he cannot deal with such assets. Such assets will be dealt with as per the original Will.

It is open to the testator to bequeath his property to person other than his heirs and descendants or disproportionately among his children in which case it is advisable that the testator states in his Will the rationale behind his decision in so that it does not create any ill-will or rancour among the descendants. There is no use taking a legal stand that this is not legally necessary. In other words, a Will should be a speaking one.

In case the testator bequeaths his entire assets to his spouse he must also state that in the event of her death or in the event of her predeceasing the testator the manner in which the bequests assets are to be disposed of.

It must disclose the share in terms of percentage, sum of money or identification of assets, to be bequeathed to each of the legatees (benefactors)

There must be a direction for disposal of residual assets/property.

Executors and administrators must be authorised to pay all legal dues.

Custody of Will

The Will is normally kept in the custody of the executor/trustee or with a professional. It is recommend that a copy of the Will (original Will being preserved as above) be given to all the legatees. It may even be kept in the safety locker of the testator, the operation of which is permissible by any of the heirs.

Probating

Legally, it is not necessary for a Will to be registered. However, registration of a Will, particularly where large assets are involved, will facilitate speedy attainment of a probate. The Will becomes operative only upon the death of the testator. It obtains legal validity beyond challenge if it is probated by a competent court, which will involve payment of applicable stamp duty.

Where there is no dispute among of the legatees and where the Will is unequivocal it may not be necessary to obtain a probate but merely a succession certificate. However, it is advisable to have the Will probated where transfer of property movable/immovable comes into play.

It is recommended that a copy of a Will be given to each of the legatees for the simple reason that there are instances where the legatees are not even aware of the existence of a Will by which certain properties are bequeathed and in the absence of any claim the executor and trustee disposes of the assets in clandestine manner in gross violation of the Will. It is clearly a breach of trust. Whenever he gains knowledge of such a Will, remedying the damage done will result in prolonged legal litigation consuming time and money.

Responsibility of the executor

Executor and trustee, upon the death of the testator, should read out the Will in the presence of the legal heirs and descendants and other legatees if possible, he should take steps to inform to each of the legatees of the existence of the Will and the assets bequeathed to him and seek his instructions for disposal.

He should execute the Will in accordance with the directions of the testator judiciously. He should discharge all the legal liabilities of the testator before disposing of the assets or in any other manner as may be mutually agreed upon between him and the legatees.

(Concluded)

(The author is a Pune-based company secretary.)

The first part of this article appeared on August 9.

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