OF WILLS AND RELATED MATTERS
In two successive issues of Common Cause, those of January-March 2009 and April-June 2009, we had published Mr. Narendra Ahuja’s articles titled “Security in Old Age” and “Disaster Management Plan for Prudent Wives”. These articles were much appreciated by our readers. The present article is based on further inputs on the subject of execution of wills and related matters provided by Mr. Ahuja.
-Editor
Tips on making a proper will
• Get the will typed on quality paper leaving ample margins on both sides.
• Young or old, rich or not- so- rich, prepare a will and register now to ensure that your assets stay with the right heirs - spouse and other legal heirs.
• A registered will ensures that your wealth is transferred to your spouse/legal heirs, that the interests of the weak or minor legal heirs are protected in accordance with your wishes and that your wealth is distributed without giving rise to family disputes.
• Mention your name, age and address at the beginning of the will.
• Please state that you are in sound health and mind and, if possible, get a doctor’s certificate on the will regarding soundness of your physical and mental health.
• Mention that it is your last will and has been made of your free will.
• Give complete and clear description of all the assets (movable and immovable properties) being bequeathed.
• If you are excluding any legal heir from inheritance, please put an advertisement to that effect in a local newspaper and attach the full page of the newspaper containing the advertisement with the registered will for the record.
• Have a residuary clause which should cover all the assets not specifically mentioned in the will.
• Get the will witnessed by two, preferably young and reliable, witnesses at the end of the will. Please take care not to include your driver or helper as a witness.
• Sign on all the pages of the will. Put your thumb impression with signature on the last page.
• Get the will registered at the appropriate Sub- Registrar Office.
Clarifications on Execution of a Will
Question : Is it necessary to attach full details of all movable and immovable properties with the will? For example, all details of fixed deposits in the banks, Monthly Income Scheme / Public Provident Fund, share certificates, mutual funds, etc. Is it not adequate simply to mention that all movable property in banks, post offices, mutual funds, etc. will go to XYZ ?
Answer: It is definitely not enough to bequeath “all my properties” to the chosen beneficiary. Please make the effort of furnishing full details of the properties, including registration particulars of immovable property mentioned on the back of purchase deeds registered at Registrar’s office.
Please give full name and address of the bank branch as well as account numbers. For investment in Mutual Funds, particulars of Asset Management Company, Scheme and Folio / Account number need to be mentioned. In case of shares, details of the scrip (if held in the physical form) and the Depository and Demat account (if held in dematerialized form) must be given. For insurance/pension/ annuity schemes of private companies, give name, folio number and office address.
Kindly understand that a will comes into effect when one is no more and in most cases, our wives, whether educated or uneducated, are financially uneducated. There may, however, be some exceptions. A widow will have to do everything in her husband’s absence. Hence a detailed will is better than a cryptic will. In today’s world, no one, including one’s children, has time and in many cases, they live in another city or country. In the hour of her loss, the widow will have to fend for herself.
Please also add the following residuary clause: -
“I give and bequeath all my money and other property, whatsoever and wheresoever, not otherwise disposed of by this, and any such movable and immovable property purchased in future and/or omitted inadvertently, to my wife Mrs........................................
Question: I am in Government service. Can the witnesses to the will be office staff, who are liable to get transferred to another station and may not readily be available for any future requirement?
Answer: You need two witnesses. They should be well known to you and younger. It is better if they are related to you, preferably from your wife’s side. They must not be beneficiaries of the will. Probate is mandatory in Calcutta, Chennai and Mumbai.
Question: Should a doctor’s signature be obtained on the will, in addition to the witnesses’? Can the doctor be one of the witnesses? Can he be from a Government hospital?
Answer: One does not need a doctor’s signature on the will, if one is in active service. However, if one is over 70, one should obtain a doctor’s signature on the last page of the will, certifying that the person writing the will is in sound health and capable of executing a will. Any doctor will do; and if he agrees to go to the sub- registrar office as a witness, it is still better.
Problems in Mutation of Immovable Property on the Basis of Unregistered Will – the Case of Municipal Corporation of Delhi (MCD)
For mutation of immovable property in MCD, a registered will is accepted without any hassle. Until recently, the prescribed procedure in the case of mutation on the basis of unregistered will was as follows:
“In case of unregistered will, the beneficiaries must be asked to obtain succession certificate/ probate order from a competent civil court.”
The rigours of the prescribed procedure have considerably been attenuated, thanks to the sustained efforts made by Mr. Narendra Ahuja. The latest instructions contained in the circular of Assessor and Collector, Property Tax Department, MCD dated August 8, 2011 are as follows: “The matter has been re examined.
After having considered, Hon’ble Lt.Governor, Delhi has been pleased to waive the condition of the beneficiaries of an Unregistered will obtaining Succession Certificate/Probate Order from a Competent Civil Court and to direct that Mutation may be allowed in cases of Unregistered will in favour of beneficiary with certain safeguards:
a. If the ‘NO OBJECTION’ of other legal heirs of the deceased are made available by person(s) claiming mutation
OR
b. In case no objections are not furnished by the person in whose favour mutation is sought, a notice to that effect will be issued by the Department to other legal heirs for their NOC within a period of one month. Either in case no objections are received or in case no objections are not received within the prescribed period, then mutation shall be granted:
c. In case certain dispute exists or objections are received, then the person claiming mutation be asked to obtain Probate of will/Letter of Administration (from Competent Court).
d. Indemnity bond will continue to be obtained from the person(s) whose name is being entered in MCD records to indemnify MCD of any loss/any litigation arising in the case of said property and will continue to pay property tax under the DMC Act".
Sd/- MSA KHAN ASSESSOR
AND COLLECTOR”
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Nevertheless, it is highly desirable that one writes and registers a will to ensure that there is no
problem in mutation of the property in the records of MCD in accordance with the testator’s wishes.
Generally speaking, the equations in a family deteriorate drastically following the demise of the
head of the family/ owner of the property. Anyone of the aggrieved relatives– say, a married son/
daughter, or the widow - may refuse to give the NOC to mutation of the property in accordance with
the directions contained in an unregistered will. In that case, one will have to move the court for a
succession certificate/letter of administration, which may cost around 3 percent of the value of the
property to be probated. In addition, there will be the inconvenience and the cost of delay, lawyer’s fee
and innumerable rounds of the lawyer’s office and the court. The consequences for the beneficiaries
of the will can be devastating and can be avoided if the will is registered.
SAMPLE WILL
ID NUMBER
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1. This is the last will of Mr/Mrs. ............................son /wife of Mr. ……………. aged …………years, resident of ........................ made on this___________day of ___ 2011. .
2. I am making this last WILL and testament of mine voluntarily and without any compulsion or pressure from any source or person and in sound health and disposing state of mind. I have not been influenced, cajoled or coerced in any manner to write this WILL.
3. I have the following legal heirs: (AS APPLICABLE)
i) Mrs. ............ years, wife
ii) Ms. .......... years, daughter
iii) Ms. ............ years , daughter
iv) Mr. ............ years, son
My mother died long back.(as applicable). I have no other living legal heir.
4. I own the following movable and immovable properties, which are all my self- acquired properties built or acquired out of my own earning and income without any assistance of any ancestral estate, and have absolute power of disposal over them .
MMOVABLE PROPERTIES
a)Flat/House no. ............... Delhi (as applicable), which has been purchased from ............ andregistered in my/our name(s) vide conveyance deed Registration number .............. in Book
number Volume number ............ on pages ........ to ............. in the Office of Sub Registrar number …... New Delhi /Delhi /as applicable Note: If there are more than one immovable properties, give particulars of all as above. MOVABLE PROPERTIES
b) My bank account jointly held with my wife/husband having joint saving bank a/c no. ......... (Please
give full name of bank and address )
c) My -do-(Many have multiple bank accounts )
d)Locker Number ............ held jointly with my wife/husband in ......(PLEASE GIVE NAME ANDFULLADDRESS OF BANK)................................................................................. where my nameappears first and jointly with my wife/ husband’s name.(NAMES OF MULTIPLE BANKS).............
e) My investments in various mutual funds, shares, bonds and/or any other Company bonds, RBI bonds, LIC pension / annuity, and any other investment where my name appears first as on date and/or any other investment in future where my name may appear first.
f) My shares held in ..................... Demat account no. ........(as applicable)
g) LIC annuity No. of Master Policy ............ having my wife/ husband as nominee and at present
office location at LIC Divisional Office (if applicable)
h) Please specify any other movable property
i) Car no. ............................................... registered with RTO, Delhi(as applicable)
5. a) I hereby bequeath all my movable and immovable properties together with the undivided proportionate share in the impartible land beneath the said flat together with the right to use and enjoy common areas and facilities of the said flat/house along with other flats described above and properties (movable and immovable) to be bought in future including bank, mutual funds and post office accounts, company and bank FDRs, lockers, flats, buildings, bonds, pension / annuity, including bonds, and payment to be received from insurance company for mediclaim policy, etc. to my wife /husband in toto.
No Government authority shall insist on “No Objection Certificate” from any other person / legal heir before mutating property in my wife’s/husband’s name. My husband/wife (as applicable) will have full right to dispose of my portion of flat along with her/his portion without any restriction and shall not require any no objection certificate from my legal heirs.
Note : If the wife/husband is alive, the property should go first to the spouse and in the event of the simultaneous death of both the spouses, to anyone or more of the legal heirs.
b) On the basis of this REGISTERED WILL, my movable & immovable properties will be transferred in the name of my wife/husband .......... by Delhi Development Authority, Municipal Corporation of Delhi, Delhi Jal Board, Electric Supply Company, banks, Unit Trust of India, Reserve Bank of India, mutual funds, depository participant, etc. and/or any other Authority. (As applicable).
c)On the basis of this WILL, my car no. .............. will be transferred in the name of my...wife/son(please give name ).............. by RTO Delhi (As applicable)
D) I also declare that notwithstanding any nomination that may have been made in LIC annuity, personal accident insurance, mediclaim or any other receivable from any source, the proceeds accruing to my estate shall be dealt with according to this WILL, i.e. be payable to my wife/son (As applicable)
6. I give and bequeath all my furniture, fixtures, carpets, paintings and other household goods, all other articles of personal domestic or household use etc. lying in flat/house no, ......................(full address) to my .................... wife or to my daughters/sons..................................
7. I give, devise and bequeath all my money and other property movable whatsoever and wheresoever not otherwise disposed of by this and any such movable and immovable property purchased in future, shall be bequeathed in the manner described above i.e. to my wife ./son/ daughter.
8. My wife/husband............ has full and absolute right to live in flat/house No. ..................... including my portion of flat, till her/his death, without any hindrance from anyone.
9. All my above mentioned properties (movable and immovable) shall be mutated in the name(s) of respective legal heirs as per this registered Will by concerned Municipal Corporation of Delhi and/or any other Government Authority in Delhi,................., RTO, and other private authorities without insisting for No Objection Certificate from any other legal heirs and/or any other persons. (AS APPLICABLE0
10. I have fully understood the contents, significance and implications contained in this registered WILL, which has been executed out of my free will, choice and dictum.
11. There has been no misrepresentation, or coercion in regard to this WILL and no one has any right to object and/or to challenge this WILL, which is the culmination of my discretion and the best means for me to safeguard my interest and the interest of my...family/wife/children’s (whatever is applicable).
12. I give, devise and bequeath all my money and other property, whatsoever and wheresoever not otherwise disposed of by this Will and any such movable and immovable properties purchased or obtained in future to my WIFE/HUSBAND (AS APPLICABLE ).......................
13. RESIDUARY CLAUSE I give, devise and bequeath al my money and other property whatsoever and wheresoever not
otherwise disposed of by this WILL and any such movable and immovable properties in future, to my.............................
14. I give, devise and bequeath both my eyes on my death to any eye bank which will use them forproviding eye-sight to any person in need.(AS APPLICABLE )
In witness whereof, I, the said ............ have put my signature to each sheet of this will containedin this sheet and in the preceding............. sheets on the day and the year first above written, i.e.the _________of ______ 2011.
The Testator has understood and approved the contents of the document before signing it and was not forced to do so by any person. Signature of
TESTATOR Signed by the above named testator in our presence and at the same time, each of us has in the presence of the testator signed one’s name hereafter as attesting witness
Name Signature Residential address
I.D.
No.
Name Signature
Residential address
I.D.
No.
THE .......DAY OF...., 2012.
