1. WHAT IS A WILL
WILL is a legal declaration of the intention of the Testator (Writer of Will) with respect to his own property (NOT ANCESTRAL) which he desires to be carried into effect after one’s death. It is revocable by Testator at any time during his lifetime. However, a registered WILL can be revoked by subsequent registered WILL only. A person writing WILL does a great service to his family and loved ones. There is no stamp duty for immovable property transferred through WILL. It is the prerogative of the person having property to distribute and disinherit anyone from his assets in the manner he considers appropriate and just. There is definite advantage at preparing WILL in comparison with not preparing a WILL.
When head of family is alive, one always says that my children are very good, obedient etc. and would never fight for property. In today’s materialistic world, all such values have disappeared. Everyone is for own family and interest and don’t underestimate the power of spouse of your son and daughter who often make brothers and sisters to fight for paternal property in courts. Hence, decide now the division of your property by writing and registering same before area SDM.
2. I AM TOO YOUNG TO BOTHER FOR WILL.
There is nothing you can guarantee yourself a ripe old age. Accidents happen and illness, terrorist attack and earth quake have been known to turn fatal. Age is not key factor. If you have spouse and children, you must write WILL. Don’t just bless children. Leave them WILL and save them from harassment at MCD/DDA/Banks/Insurance and greedy relatives.
3. REASONS WHY SENIOR CITIZENS SHOULD WRITE & REGISTER WILL.
Make a WILL when you are in sound physical and mental condition and get it registered. It acts as deterrent for miscreants to prove ownership with false documents or documents signed by the elderly under duress if a contesting REGISTERED WILL exists.
4. WILL ON PLAIN PAPER ONLY
WILL can be written on plain paper preferably typed double space (no stamp paper) witnessed by two persons putting one’s signature on WILL. Witnesses need not know contents of WILL. It is advised that the witnesses should be young and reliable
In case one is very old it is desirable that a certificate with date from a doctor be obtained on WILL itself (both the copies of WILL) about the health and capacity of the person to write his WILL.
5. I DON’T HAVE A BIG ESTATE
Most have little idea of the size of our estate and are not sure how to calculate our net worth. Even a small flat costs Rs. 50 lacs in Delhi.
6. I HAVE NOMINEES FOR MY ASSETS, I DON’T NEED A WILL
Nominees only hold the asset in trust so it can be passed to the legal heirs. For immovable property, one can not nominate “Nominee”. Hence you do need WILL for transferring immovable property, business, motor car etc.
7. CONSULT SPOUSE WHILE MAKING WILL.
IT IS RESPONSIBILITY OF WOMAN TO ENSURE THAT SPOUSE WRITES AND REGISTERS WILL. WOMAN SUFFERS MOST IN ITS ABSENCE. THIS IS ONLY WAY FOR SMOOTH TRANSFER OF PROPERTY (MOVABLE/IMMOVABLE) AND BUSINESS TO WIDOW/RELATIVE.
8. WRITE WILL EARLY IN LIFE AND REVISE PERIODICALLY.
One should make WILL as early as possible in life – say marriage, or buying property whichever is earlier. Death comes at all ages including young and without warning. It is never too early/late to write and register WILL.
For example, a person has a family of himself, his wife, two major sons and two major daughters. All are well settled and married. He desires to give away Rs. 15 lakhs to his wife and rest to his four children; he can do so by writing his intention in the WILL. However, if he does not make a WILL and were to die intestate, then his all assets will be divided amongst his wife and four children in equal proportion. Which of the options is more desirable?. However, if there is dispute between widow and four children, one has to obtain succession certificate from appropriate local court which may take 3 to 5 years and about 2.5percent of total cost of property and lawyer fee which generally depends upon valuation of total wealth including property and lot of acrimony between the five legal heirs.
9. DON’T NEGLECT THE MARRIED DAUGHTERS. Sons have no birth right to parental property. Daughters have equal rights for parental property. Son is a son till he gets married; daughter is daughter for ever.
10. MENTION NAMES AND AGE OF LEGAL HEIRS.
The WILL writer must mention the legal heirs, i.e. in the case of male mother, wife, son and daughter with their name, age and address and in the case of female husband, son and daughter. Someone in the family should know where registered Will is kept.
11. WHAT CAN BE BEQUEATHED IN WILL
All properties – movable & immovable self acquired property, i.e. generated through independent income, gift (not ancestral) can be bequeathed by WILL. Ancestral property is one obtained from parental, grand father, parental great grand father etc. However, property inherited from a person other than his father, paternal grand father or great grand father is considered to be self acquired property and therefore can be willed. Give full description and share of property, number, street, floor, area, city and description from whom bought etc. Similarly give description of business, share in business etc.
Generally all movable and immovable property is first bequeathed to spouse and one can mention, if necessary, on spouse demise to be distributed to son/daughter. One can also mention that spouse has full right to sell the immovable property.
It helps to have a clearly articulated WILL or succession plan. And it means clearly articulated. Take one case described by Subhash Lakhotia, a Delhi based Tax Consultant. Before his death, this client had equally distributed his property between his sons in a written WILL. The WILL also said “my wife will have the right to stay in the house owned by me”. Guess, where his wife ended up: in a small garage that was part of house, thus technically meeting the requirements laid down by her husband.
Wording should have been “My wife would be permitted to stay at the same place occupied by me that includes my bedroom, drawing room, kitchen, lobby and garden”.
12. BUSINESS & WILL
If you are a business man, you need to decide who will take over your business after your demise. In proprietary concern, if you don’t leave Registered WILL, all legal heirs become owners of business. Hence in your life time, include your spouse as partner in business.
13. REVISION OF WILL
Making WILL is not a one time affair. If circumstances change like death in family, purchase of house, shop, business and like, new WILL should be written and registered. An earlier registered WILL can be replaced by subsequent registered WILL only.
“One can revise one’s WILL any number of times”
14. REGISTRATION OF WILL – A MUST FOR PRACTICAL & LEGAL REASONS
IF A WILL IS REGISTERED, it may be possible to get the leasehold property mutated in the name of beneficiary legal heirs in DDA/L&DO/MCD. It also removes any ground for suspicion. Registered Will is certainly superior to unregistered one. Registration cost in SDM Office in Delhi is nominal Rs. 100/- and time taken less than an hour. For registration, take two original copies of preferably typed WILL with photo pasted on right hand side top and your identity card and two young and reliable witnesses (male or female) with identity cards like passport, election card, driving licence. As soon as the WILL is signed on every page by the author of WILL and also signed by two witnesses to WILL, then the WILL is ready for being presented to Sub-registrar. A small receipt in duplicate evidencing the registration of WILL is given to the writer of WILL. On production of small receipt, the original registered WILL be returned to you duly stamped AFTER ONE HOUR… Registered Will is necessary for mutation purposes and is also useful for getting money from P.F., Gratuity, LIC policy, Banks, Mutual Funds, Bonds, Shares, Post Office deposits etc. in case there is no nomination. Even for transfer of motor car, one needs preferably a registered WILL.
WILL is registered in Delhi in the Office of Sub-registrar of area where property is registere
Delhi Administration has made special arrangement for senior citizens for registering of WILL. They need not stand in queue and can go straight to Asst. Registrar requesting for priority registration.
15. REMITTANCE OF MONEY ABROAD FOR SELLING ANCESTORAL PROPERTY
Large numbers of parents have their all children abroad and for them it is highly desirable or even essential to write and register WILL. The properties of such parents when dead are vulnerable to dishonest persons trying to grab the properties by any foul means on the death of the owner.
Government has now allowed proceeds of sale of such properties to be sent to children settled abroad. The issue of remittance is stipulated under the Foreign Exchange Management Act (FEMA). As per FEMA, an amount upto US$ 1 million can be remitted outside India in a calendar year in case of sale of ancestral property through normal banking channels after obtaining a certificate from a Chartered Accountant certifying that all taxes have been paid. Evidence of inheritance of property like Will have to be shown to bankers for such remittance.
ALL THOSE WHO ARE CHILDLESS AND/OR SINGLE MUST WRITE AND REGISTER WILL
16. REGISTERED WILL & FREEHOLD PROPERTIES
During the last few years, large number of properties has become free hold from lease hold meaning thereby that such properties have no connection from the authorities from which they were purchased, i.e. L&DO or DDA. Hence, on demise of owner of property, there is no need to go to L&DO/DDA for mutation of property. In spite of this, one has to mutate all properties with MCD for Property Tax and other purposes like building plans, water, sewage etc. Hence, it is highly desirable, in fact essential, that as and when a property is purchased, a copy of Registered Deed is immediately submitted to MCD so that information regarding ownership is recorded in Municipal records. Similarly, in case of death, legal heirs should intimate to MCD in the proper forms with death certificate for mutation of property in their names. In case one fails to do so, property in MCD continues to be in the name of earlier owner and Property Tax is also deposited in the name of earlier owner, which is legally incorrect. If property is on rent to another party, property tax is deductible from house income for income tax purposes.
17. FREEHOLD PROPERTY AND REVERSE MORTGAGE
In case a property is freehold, one can have assured income after 58 years.
18. REGISTERED WILL AND DDA
So far DDA has been insisting that apart from Registered Will, transferee should also submit “No Objection Affidavit” from those legal heirs who have not been beneficiary of any property through the aforesaid Will. On the persistent follow up of undersigned with Vice-Chairman, DDA to remove this offensive clause, DDA has finally agreed through Principal Secretary DO No. PS/PC/DDA/2004/32-M dated 26.4.2004, which reads as follows:
Dear Shri Ahuja,
This is in reference to your letter dated 8.4.04 addressed to the Vice Chairman, DDA regarding clarification about the guidelines to transfer flat in death cases on the basis of registered WILL. It has been decided that in such cases no objection certificates will not be asked from the other legal heirs in case the ‘WILL’ is registered in favour of one/few family member/s. However, as per the Authority Resolution, the person in whose favour registered ‘WILL’ has been made, he/she will merely inform DDA about the other legal heirs in his/her affidavit but NOC from them will not be required.
19. PROPERTY IN JOINT NAMES
MOST BELIEVE ERRONEOUSLY THAT PROPERTY IS AUTOMATICALLY INHERITED BY SPOUSE; legally it is not so. Property can only be inherited legally either by WILL or in the absence of WILL by the laws of intestate succession as applicable to religion.
If, however, property has been purchased jointly by paying proportionate cost of property, both owners should write separately their WILL only for the portion of which they are owner.
20. DDA/MCD prefer Registered Will for mutation of property.
Property received through WILL by a person is legally his own in all respects and should be mutated/transferred in DDA/MCD/ L&D Office and also in DJB and Electricity Office records by submitting Registered Will, death certificate and other required papers/documents at the earliest. Procure 20 original death certificates from MCD/NDMC because most authorities insist for original death certificate or notarized death certificate.
Guidelines are available for mutation in MCD/L&DO/DDA Office. Best guidance for filing of forms can be obtained from the typists sitting outside MCD and DDA offices.
21. WHAT HAPPENS WHEN THERE IS NO WILL
It is not that property is not transferred if one has unregistered Will. In that case DDA insists that legal heirs should write revocation deed in favour of one to whom they wish property to go. This is in case where all legal heirs agree to give property to agreed person say mother.
If there is disagreement between legal heirs, only course is to approach local court for succession certificate, which will indicate how property will be distributed among legal heirs. For this, one has to apply to Court. Thereafter, Court issues notice to all legal heirs and also gets one legal notice in leading local newspaper printed for filing of objections. After matter is decided, Legal Heir Certificate on stamp paper of 2.5% of value of property is issued. If the total property is worth one crore, stamp duty shall be 2.5 lakhs. plus advocate fee and delay of five years.
22. MUTATION OF POWER OF ATTORNEY PROPERTY
If property (flat) on leasehold on power of attorney, get property mutated in your name in DDA by paying stamp duty and registering same. It is advisable to get property registered in female name because Stamp Duty is only 4% while in other case it is 6%. All properties purchased on Power of Attorney are not properties of POA holder in legal sense though facts of physical possession with other documents are in his favour.
Many people are reluctant to get the leasehold property converted into free-hold because they feel that it is not necessary since they are in physical possession of flat, have power of attorney and registered Will in their favour. Little do they realise that power of attorney lapses with the death of the person who issued same. Secondly, registered Will comes into force on the death of the person and one will never know when and where writer of Will dies and chances of getting the death certificate are remote. Also, DDA insists that in case of registered Will in favour of someone other than legal heir, no objection affidavit be brought from legal heirs. In such circumstances, it is doubtful if any legal heir will give ‘No Objection’ to POA holder.
The cost of converting the lease hold property to free-hold goes on increasing with the increase in land prices. Hence the necessity of converting leasehold into freehold at the earliest.
23. CONTENTS OF WILL SHOULD BE KEPT SECRET (IF NECESSARY)
Otherwise the beneficiaries might pick up a row and quarrel with the writer of WILL/beneficiaries as to quantum or proportion of properties disposed of by him as between the beneficiaries. Everyone including rich want free money. Original WILL and registration papers of properties can be kept in bank locker. Never keep any original document in Office.
24. NOTHING PASSES TO SPOUSE AUTOMATICALLY
Most believe that on their demise, property – flat/house/money/shares shall automatically pass on to their spouse. There is no such provision in any law. Property passes to legal heirs only and spouse gets a portion depending upon the number of legal heirs. If husband and wife have same or different properties both must write separate Wills.
25. WILL AND NOMINATION
Most believe that by making nominations, there is no need for writing WILL. Nothing could be more fallacious than this.
It is important to understand the distinction between a “WILL” and “NOMINATION”. A Nomination does not lay down a separate Law of Succession. A nominee does not become owner of the property after the death of nominator. A nominee’s name will come on Share Certificate of Society, Company, Bank FD/Account etc. but nominee does not become owner. A nominee is only a trustee of the legal heirs. In case of contradiction between the contents of a Will and those of Nomination, a Will contents prevail, as Nomination does not give any succession rights.
In case one wishes nominee gets legal title over property, one should write Will in favour of Nominee. In other words, nominee and person in whose favour WILL is written, are same.
26. POWER OF ATTORNEY/GIFT DEED/REVOCATION DEED OF PROPERTY TO R ELATIVES
Reply is emphatic ‘No’ because one may lose the total property and left in lurch on road. It has happened to many old persons.
27. ACTION TO BE TAKEN ON DEATH OF WRITER OF WILL
AS PER SECTION 57 READ WITH SECTION 213 OF SUCCESSION ACT, 1925 AND AS HELD IN RAM CHAND GANESH DAS VS. SARDARA SINGH (AIR 1962 PUNJAB 382) AND JAGDISH CHANDER TRIKHA VS. PUNJAB NATIONAL BANK AIR 1998 DELHI PAGE 275-276, IT IS NOT NECESSARY TO GET REGISTERED WILL PROBATED IN DELHI . However, in case some one challenges the WILL, it may become necessary to get WILL probated. The stamp fee for getting WILL probated is 2.5 per cent of the total property involved in WILL and lawyer fee.
Practical consideration demand that when property owner is no more, the name of deceased is withdrawn and substituted by legal heirs as soon as death certificate is received to prevent complications arising from long list of relatives and heirs who tend to surface from nowhere in any investment instrument. If property is on lease, tenant be informed of death alongwith death certificate with the request to draw new lease deed in favour of legal heirs.
If one is beneficiary of WILL, please read the contents of WILL and act according to the dictates of WILL.
28. RESIDUARY CLAUSE
By a Will one can bequeath one’s property, present as well as future. A Residuary Clause(s) should make provision about properties not specifically identified in the Will. Clause can be written as follows:
“I GIVE, DEVISE AND BEQUEATH ALL MY MONEY AND OTHER PROPERTY – MOVABLE AND IMMOVABLE WHATSOEVER AND WHERESOEVER – NOT OTHERWISE DISPOSED OF BY THIS WILL AND ANY SUCH MOVABLE AND IMMOVABLE PROPERTY PURCHASED IN FUTURE IN THE MANNER DESCRIBED ABOVE, I.E. FIRST TO……………………………AND ON HIS/HER DEMISE TO MY………………………
29. DRAFTING OF WILL
Get WILL drafted from a person who is well versed with drafting of WILL. Every WILL is special keeping in view relationship in each family before and after death. Remember future peace of your spouse and family depends on WILL.
30. EMPOWER SPOUSE WITH FINANCIAL KNOWLEDGE
Most ladies(working as well as housewives) are not interested in financial matters. They feel that it is man’s domain and consequently suffer heavily when one becomes widow. ONLY TIME A WIDOW IS RESPECTED AND LISTENED BY CHILDREN IS WHEN SHE HAS PROPERTY AND MONEY IN HER FAVOUR.
31. PREPARE AN ASSET REGISTER OF SELF AND SPOUSE giving details of movable and immovable property, pension file, income-tax file, Bank accounts, PPF, Senior Citizen Saving account, bank locker No., documents kept in locker, PLACE WHERE WILL kept, passport, other documents etc. Otherwise spouse, relatives spend months/years searching and listing assets. Also mention names of near relatives/friends who will help spouse (widow) for getting movable and immovable property in her name from various authorities.
32. Please do not part with your original / photocopies of WILL and any property documents in any circumstances because hostile person can destroy same. Original documents should be kept in locker and only photo copies with you.
Above are only some of the guidelines. One may act as per his/her circumstances.
-YOU CAN WRITE/REWRITE WILL/CHANGE NOMINEE
BUT DON’T FORGET
-YOU CAN NOT REVOKE GIFT / REVOCATION DEED
DON’T GIVE MONEY, PROPERTY
AND POWER OF ATTORNEY
TO ANYONE WHEN ONE IS ALIVE.
LEARN TO SAY ‘NO’
MA.,LLB, P.G.Dip (Manchester), AIPM ( London)
Management Consultant & Advocate
Mobile / 9312234825
Email Courtsey : Vilas Bhonde