Will wars spur lawyers to advise caution

As instances of litigation over validity of wills rise, the legal fraternity is out to advise clients to take extra precaution.

Some even advise video-taping the process of preparing a will or every moment from attestation by witnesses to signing by the testator to be photographed.

Others have been advising their clients to have at least three young witnesses attest the will to make proving its genuineness easier in case a witness testifies otherwise.

A valid will must be attested by two or more witnesses, each of whom sees the testator sign or affix his mark to the will.

Getting a will attested or witnessed by a doctor is a good way to prove that the testator was in a sound state of mind at the time of making the will.

Advocate Geeta Luthra says, any person wanting to ensure that his property is devolved without any dispute should express his intentions during his lifetime to avoid any disappointments later. She, however, added that this could create malice towards the testator.

Even as it is not compulsory under the Indian Registration Act, 1908 to get a will registered, it is advisable to get it registered with a sub-registrar. A testator can also keep his or her will in a sealed cover in the custody of a district magistrate.

Wills made by Hindus, Sikhs, Jains or Buddhists in India are governed by the Indian Succession Act, 1925. Wills made by Muslims are largely governed by the Muslim Personal law.

The testator must clearly specify his intention. A will becomes enforceable only after the death of the testator and can be changed any time during his lifetime.

Although there is no restriction on the number of times a will can be made, only the last one made before the testator's death is enforceable.

A testator can cancel all the earlier wills and make a fresh will incorporating the desired changes or alter only the relevant parts suitably by way of a codicil, which is a supplementary document to a will. A codicil cannot be used independently.

A testator should be a major and of sound mind while making a will. A will, made under the influence of alcohol or in an intoxicated state of body or mind, sufficient to take away free agency of a testator, is void. If it is proved so, the will becomes ineffective.

A will or any part of a will that has been caused by fraud or coercion or by exercise of undue influence or pressure is not a valid will.

According to counsel Arving Nigam, "Undue influence can be exercised in several ways here. Proximity to the testator can always be misleading and one can influence to get the whole property bequeathed to himself."

Every will needs to appoint an executor to obtain a probate (a copy of the will certified under the seal of a court of competent jurisdiction).

Probate of a will, once granted, is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator.

The will should normally appoint some trusted persons as executors so that the properties are actually distributed as per the intentions of the testator. Professionals charged with fiduciary (a person who is a trustee or belongs to a trusteeship) responsibility will have to discharge responsibilities in the testator's letter and spirit.

Says senior counsel Jayant Bhushan, "There is need to have stringent laws with regard to forgery and perjury. There is no adequate penalty in case of falsifying records and the process of law. Conviction rate is low."

As the Indian law is fraught with complications on wills and succession there is a need to simplify the execution process.