Divorce will dissolve the WILL
By VIMAL PUNMIYA FCA, LLB.
Q.1 What is a Will and the benefits of making one?
Ans: A WILL is a written document in which you provide for:-
a. The administration of your estate/assets when you die; and
b. The distribution of your possessions in specific proportions to specific people whom you wish to have a share of your estate/assets;
c. Appoint a person or persons of your choice to administer your estate; and
d. Appoint a guardian or guardians for your infant children (if any).
In other words it a document where you direct, who is to receive your property upon your death. If you have any real property (land) or personal property (cars, jewelry, money) that you want to give to a specific person than you must have a will.
Q.2 Should everybody – working or non-working person, man or woman make a will? and What if you die without making a Will
Ans: “Where there’s a Will, there’s a way….Where there is no Will, there will probably be family bitterness/family disputes…” If people die without a WILL, then the law will decide to whom the property of the deceased person should go to.
Thus, every person whether working or non working , man or women should make a will.
Q.3 When should people make a will? At what age on an average?
Ans: Every adult, no matter what age, should have a Will. Most preferably a person above the age 50 should have a will. And while making a Will a person must be of sound mind.
Q4 How do they make this will? Is there a process to making a will? What kind of paper is to be used? What language do they write it in? Do they need other people to witness the will?
• No prescribed form for a Will; only needs to be signed and attested
• Can be in any language; no technical words need to be used
• Two witnesses must attest a Will; one preferably a doctor
• They should sign in the presence of each other and the person making the Will.
• In India, the registration of Wills is not compulsory
• The Will should provide for the appointment of executors, though not mandatory.
• No stamp duty is required to be paid for executing a Will.
Q.5 Where should they keep the will when they finish writing it? Should somebody in the family/or friends know where they have kept this paper/will?
Ans: Keep the original in a safe place where it may be found easily after your death. Leave a copy with the attorney who wrote it for you or with a copy with your family friend, CA or Advocate.
Q.6 Can a will be verbal like told to a person before death, or does it have to be written?
Ans: A Will has to be Written but a verbal will is permitted in Defence Personal. However, a verbal will is not valid if you have a valid, written will. If you have no written will, a verbal will can be valid with regard to any property you own, except land. Property that can be transferred under a verbal will includes stocks, bonds, cars, coin collections, jewelry and appliances. A verbal will is valid only if know you are dying and say what you want in your will to two competent, disinterested witnesses. The witnesses must put the will in writing and sign the transcription within ten days.
Q.7 We see lots of problems in families when the head of a family passes away without leaving a will. Is that true? Would things be easier if there was a will?
Ans: If you die without leaving a valid legal Will, you are said to have died ‘Intestate’. The law dictates who will inherit your Estate and in what proportions. The law also decides who will have responsibility for administering your Estate (your Personal Representatives). Such an decision may create a disputes and some family hurdles among the family members.
Q.8 Should you keep the contents of a will a secret? Or, can they be shared with people?
Ans: It is advisable to keep the contents of a will secret. However, it is not necessary to keep it secret, it depend upon person to person and case to case.
Q.9 A husband may leave a will should a wife also make a will? Or Can a Husband and Wife can make a Joint Wills?
Ans: No it is not possible to have a joint Will they must be individual Wills.
However “Mirror Wills” are quite common. A mirror Will is when a spouse or partner make almost identical Wills, or even identical Wills, leaving for example, everything to each other respectively should one partner perish and if both perish together then direct to children. If they have no children then to a named beneficiary’s. This is where major differences often occur say, for example, the husband could leaves his possessions and estate to his siblings and the wife leaves her possessions and estate to her siblings!!!.
Q.10 Supposing a person makes a will leaving his/her assets and money not to family but to an outsider or perhaps to a charity – is this will to be honored?
Ans: Yes, basically a Will is a document that states or directs the will of the person, as to whom he/she wants his/her property to be handled after their death. So the person in whose name the assets are transferred can be any person a outsider or even an charitable trust etc.
Q.11 Wills are often contested by people. Can you enumerate three of the most common grounds on which they are contested?
Ans: Yes, Wills are often contested by peoples. Some common grounds on which wills are contested are as follows-
a) That the person was of not sound mind.
b) The Testator lacked testamentary capacity to sign a will.
c) The person was unduly influenced into signing a will/ a will is made under pressure.
d) The will was procured by fraud.
e) The Will is not signed before two witnesses.
f) The name of family members is not mentioned in will.
Q.12 Wills often result in bitterness in families and fragmentation – maybe somebody thinks they have not quite got what they wanted or lesser than the other person.
Ans: Yes, it might happen in various situations. In order to prevent such happening it is advisable to consult a lawyer which will help you to draft the will in the manner and giving the proper statements as to why only certain assets are given to a particular member instead of others.
Q.13 Have there been cases in which a will has been deliberately tampered with? Or, when maybe mentally unsound people have been fooled into making wills?
Ans: There are very few cases where the will has been deliberately tampered with or when the mentally unsound people have been fooled into making Wills.
Q.14 Can a person change a will he has already made?
Ans: You can change your will any time you want to. However, make sure that when you make a new will, you mention that this will is the latest and supersedes all earlier wills. If you don’t, it can complicate the situation, cause major confusion, make such matters go to the court of law and take several years before arriving at any final verdict
You can also make an additions to your will by signing a “codicil,” with all the formalities of a will. The codicil must be in writing, dated and signed by you and two witnesses. You cannot change a properly executed will by writing revisions into the will, even if you initial and date the changes. Such changes are valid only if they occur before the will is signed and witnessed. If major changes are needed, consider making a new will.
Q.15 What would you advise? Always make a will with a cool head, never in a rash or impulsive manner – what should be a person’s state of mind when they make a will?
Ans: A person should make a Will in a sound mind and should have the will Registered with the Registrar of Sub Assurances in presence of two witnesses registrar will also ask for Indentify proof, Doctor Certificate, Residential proof of person who makes Will, Identity proof of witness expenses are very nominal.
Q.16 Should they take the help of a lawyer when making a will or can they make it on their own?
Ans: The procedure of making a Will is very simple, if assets are few than the help of lawyer is not necessary but in case if the Assets are many and the family is big and if there is a possibility of disputes than it is advisable to take the help of the lawyer. As “Do-it-yourself” wills often do not contain all the necessary components as required by law and many times ruled as invalid by courts (for example no signatures from witness or no witness at all). Many a time, it can happen that while creating the will, you use such ambiguous language that it results in lengthy legal battles (“My House should go to Sunita.” Now if both mother and wife are called Sunita, which Sunita ought to get it?. Anyone who might benefit from the ambiguity of the will can jump in to claim a share! And if the courts decide in his/her favour, you won’t like that situation (not that, you’ll be around!).
Q.17 Does marriage / entering into a civil partnership affect my Will?
Ans: Yes, if you marry or enter into a civil partnership, your Will is revoked. This is because there is an assumption that you would wish to provide for your new spouse or civil partner. There is an exception to this rule if you have made your Will ‘in anticipation of’ marriage / entering a civil partnership. If you are in any doubt about this, consult your Solicitor for advice.
Q.18 Does divorce / dissolution of civil partnership affect my Will?
Ans: Yes, if you divorce or your civil partnership is dissolved, any Will you have made is revoked but only to the extent that your ex-spouse or ex-partner is referred to. For example, any appointment of your ex-spouse or ex-partner as an Executor or beneficiary is revoked. However, your Will may still be valid and, again, you should consult your Solicitor for advice.