Mr. Raj (name changed), aged 67 years, was tested positive for Corona Virus (Covid-19) and admitted in Bangalore’s top hospital. His family was not allowed to see him after he was admitted. Four days after battling for his life against Corona Virus, he was rushed to the ICU and little did his family know that they would not see him again. Mr. Raj passed away while his entire family was being quarantined. A month after his unexpected death, the family has succession questions to be answered.
Mr. Raj died intestate, without a Will, leaving behind a huge legacy – stocks and securities, fixed deposits, real estate properties and other assets. Having no written Will results in the beneficiaries quarreling a few times regarding who should get what asset, to an endless debate of equal division of assets. Although, all properties have different market value and each feels the balance is tilting towards their sibling. Tension between the family members increases creating void and rift in relationships. The Banks and the Stock Broker ask for a Succession Certificate and Family Tree before releasing any thing in their favour, in spite of nominations having been submitted by the depositor at the time of opening these accounts.
This sort of situation must be avoided. A Will is an instrument which clearly sets out the manner which the distribution of assets/ properties can take place after the death of the person. A testator is a person who makes the Will which specifies the manner of distribution of assets after his death. The Will would be valid only and only after his death. Hence, even if a person who is Covid positive and wants to ensure that his family does not quarrel for assets or that they are not faced with the harassment of institutions, organizations, government agencies, etc such as Banks, Stock broker, Authorities for Property transfer, Facebook, Gmail, Wallets, etc must make a Will. The Will can be changed at multiple points of time in his/her life.
The basic requirements of a Will are that the person writing the Will must be of sound mind, he must be an adult and preferably have witnesses to the Will. A will may be registered in order to avoid a probate petition to be filed before the Civil Court, since, under the Indian laws, it is not mandatory to register the Will or get it notarized. A registered document adds as evidence to avoid the question of genuineness of the Will between the family members. A Will made by fraud or coercion is void and invalid and it becomes a matter of evidence if any person claims the Will to be fraudulent. It must be noted that a Will need not be in the handwriting of the person and it can be typed and attested as well. Therefore, in the current situation like Covid pandemic, a Will can be drafted by our legal team and it can be printed or handwritten by the testator
Under the Will, a person can include immovable properties in their name or jointly owned. Further, movable assets and tangible/ intangible assets can also be included such as bank account details, cash, vehicles, jewelry, fixed deposits, intellectual properties, shares and securities, etc. Further, digital assets such as facebook accounts, gmail accounts, online wallets, cryptocurrency accounts, etc, can also be included in the Will so as to avoid any complication.
One must note that different laws of succession apply based on your religion for example, Hindu Succession Act will have to be followed for a Hindu, while for Muslims, the laws differ for Sharias and Sunnis and for Parsis and Christians, the Indian Succession Act will have to be followed.
We have noticed that sometimes both parents or all family members may unfortunately pass away due to covid. A Joint Will can be made for spouses or co-owners of an asset who can express under the Will that they would like to transfer the assets to their spouse after the death, whoever is living and then transfer the same to their children/ beneficiaries.
Some of the common questions a Testator poses are:
- Who are the persons I can mention in my will?
- Can I register a Will in a foreign country?
- Is the Will registered in a foreign country valid in law?
- Can an NRI make a Will for properties located in India?
- What is the difference between Gift and a Will?
- How many witnesses does a Will require?
- What do you mean by probate of a Will?
- Can I exclude any legal heir from the Will?
- Can my Husband/wife change the Will after my death?
- I have submitted nomination in the Bank, do I still need a Will?
- Can I appoint a lawyer as the executor of my Will?
- Who can be an executor of my Will?
Feel free to connect with us for questions on Will, Succession, Drafting a Will, probate, on contact@bangalorelawyer.com