Devangshu Datta: A question of will power

WORM'S EYE VIEW

The format is extremely important; even an uncontested will can be held up or invalidated.

Being of sound mind and aware of the transitory nature of life I hereby pen my last will and testament." A standard draft in Wills by D'Souza begins with this sonorous phrase.

The elegance of the prose is some recompense for the melancholy we experience as we contemplate our own demise. If you make a property transaction on power of attorney (PoA), the supporting paperwork includes a will. It may start with the above phrase "" D'Souza is a popular kunji.

In the standard PoA will, the seller excludes his/ her heirs from making claims on the property sold. A "PoA will" is often badly drafted. Such documents can be interpreted as handing over irrevocable rights to the seller's entire estate.

If you have sold PoA property, it behoves you to immediately register a new will invalidating the one made in the transaction. If your life does prove transitory, your heirs will then avoid the potential complications that might arise from loopholes in the PoA-related document.

Apart from PoAs, wills are made when somebody is unhappy with their natural heirs. A childless couple may jib at the wife's sister's children inheriting in the event of their simultaneous demise. "Dadu" might keep his wastrel clan in line by threatening to will his all to the Ramakrishna Mission.

The laws of wills contain many paradoxes. A will can be made orally during battle or shipwreck, but not during an earthquake. This means, gentle reader, that you must grab pen and paper and co-opt at least two witnesses whilst being buried under the rubble of your collapsing house if you wish to leave "All to Spouse". On the other hand, it is enough to simply say this to two companions as the three of you cling to a sinking lifeboat.

A will can indeed be as brief as "All to Spouse" provided it's signed in the presence of two witnesses. The intentions must be clear and the witnesses must know that they are witnessing a will though they need not know the contents.

The witnesses should not ideally be legatees. This is to avoid conflicts of interest. But it has been stretched. Most famously, a zamindar who was being importuned by his four sons made a division of property and insisted that all four sons sign his will as witnesses to prevent future disputes.

The probate differs from state to state. Woe betide you if the estate is in the erstwhile "presidency" towns of Kolkata, Mumbai or Chennai. There is an additional layer of bureaucratic processing required for probate in a "Presidency" town. Even elsewhere, an uncontested will takes many moons to probate. Life may sometimes be transitory, legal processes are always tardy.

The format of a will is extremely important; even an uncontested will can be held up or invalidated due to several reasons. When contests occur, decades can pass before probate. In property disputes, it is standard operating procedure for claimants to all produce wills.

In long-standing property dispute, fake wills based on fake wills are common enough. X dies and Y and Z both claim X's estate on the basis of wills. Then Z dies. Z's heirs A and B both produce wills, and so on. In lay circles, people have wondered why Dhirubhai didn't leave a will. Nobody who has lived through contested probate in a presidency town would ask this question.

The Ambani family is going through a bitter, public feud. It will still sort things out quicker and with less damage to Dhirubhai's legacy than it would in contested probate. We can try to "prove" this assertion by comparing developments in the Priyamvada Birla case vis-à-vis developments in the Ambani dispute.

Judge the market value of the Birla estate now and compare it to the residual value as and when the dispute is legally resolved. I would be prepared to open a book that the Birla estate will lose much more in percentage terms compared to the percentage losses suffered by the Ambanis.