Making a will doesn’t mean you’re over the hill: Anil Harish

Anil Harish
Making a will doesn’t mean you’re over the hill: Anil Harish

Anil Harish, who is “one of the top legal minds in the country whose advice on tax and law is sought not only by corporates but also by individuals”, made an outstanding presentation on the crucial but neglected subject of “Wills” (as in bequests) at the last meeting.

It was as if he was dictating a chapter in a forthcoming book. He presented all aspects, including shortcomings and pitfalls, and spoke with great erudition; members were left marvelling at his grasp of the subject.

President Nowroze Vazifdar, who introduced Anil, pointed out that he had done a commendable job as Co-Chairman of the Programme Committee and, in spite of his busy schedule, had always been available to the Club.

Anil plunged right into the task at hand without any formality. As a departure from the norm, this report is being presented in the form of a chapter in a legal textbook, complete with crossheadings but without annotations. One hopes the effort would meet with success.

In the case of a Hindu female dying intestate, her property went in equal shares only to her husband and her children, not to her mother and father.
Muslim law

Under Muslim law, some sects of Mohammedans could not make a will in respect of their entire property. They could make a bequest only in respect of one-third of their assets and two-thirds would have to go in accordance with the law of intestate succession.

This did not apply to all sects; some sects could make a bequest in respect of all their assets, but some only in respect of one-third. However, there was one important set of provisions to be kept in mind.

People of different communities could marry under the Special Marriage Act and register their marriage under it. Even persons who had already been married, who were married and who happened to be of the same community, could register their marriage under the Special Marriage Act.

Even those already married under, say, the Hindu law or the Muslim law or under any other law,could get their marriage registered or re-registered under the SpecialMarriage Act. When that happened, they had the right to make a will in respect of all their assets.

For example, a Muslim man of about 65 or 70 was married to a Muslim woman and wanted to make a will. Despite his age and although married for 45 years, he re-registered his marriage under the Special Marriage Act so that he could make a will and bequeath his assets in the manner he wished.

The essentials of a will

A person had to be of sound mind and not a minor (he had to be over 18 years).

Many laws made in the 1800s and the early 1900s had explanations and examples which clarified situations. Section 59 of the Indian Succession Act held that even a person who was deaf, dumb or blind was not incapacitated if he knew what he was doing.

No person could make a will when he was in such a state of mind that he did not know what he was doing. If a person was normally healthy but happened to be intoxicated or very ill at a particular point of time, even though he was normally of sound mind and was a major, he could not make a will at that time; and if he did and if it was proved that he was intoxicated or very ill at that time, then that will would be treated as invalid.
How many wills?

A will could be revoked or altered by the maker at any time when he was competent to dispose of his property. This meant that one could make a will as often as one liked. “You can make one today, you can make one tomorrow, you can make one the day after tomorrow. It’s not that you can make a will only once a year or once in a lifetime.”

One could make a will and change it when situations changed, when children grew up or when there was any other difference in one’s situation, for example, if one had acquired something new or sold a property.

There was no limit to the number of times one could make a will. But it was the last will that would prevail.

To make a will

A will had to be in writing and signed or otherwise marked. If a person could not sign, he could put his thumb impression. In the latter case, it was important for the witnesses to be credible and to be able to certify that they were present at the time and that the thumb impression was the thumb impression of the person making the will.

It had to be noted that after a person passed away there was no record of thumb impressions and it was not easy to compare them. They were not easily distinguishable to the naked eye.

As for the mark, it had to be so placed (“this is what the law says, and very sensibly”) that it appeared intended to give effect to the writing as a will. Sometimes, people left blank sheets of paper and then a member of the family, or someone else, got hold of that blank paper and filled in writing in a way to portray it as a will.

If the mark was in the centre of the paper, or at the top of a paper, then obviously it was not intended as a will because the signature was normally at the end of the document or in some other suitable place to show that it was intended as a will and not just a blank paper on which interpolations had been made.

Need for witnesses

There had to be two or more witnesses, each of whom had seen the testator sign or affix his mark to the will, or had received from the testator personal acknowledgement of the signature. It was not necessary for the two witnesses to be present at the same time; they could be at different places.

In the case of a Hindu female dying intestate, her property went in equal shares only to her husband and her children, not to her mother and father.

Muslim law
Under Muslim law, some sects of Mohammedans could not make a will in respect of their entire property. They could make a bequest only in respect of one-third of their assets and two-thirds would have to go in accordance with the law of intestate succession.

This did not apply to all sects; some sects could make a bequest in respect of all their assets, but some only in respect of one-third. However, there was one important set of provisions to be kept in mind. People of different communities could marry under the Special Marriage Act and register their marriage under it. Even persons who had already been married, who were married and who happened to be of the same community, could register their marriage under the Special Marriage Act. Even those already married under, say, the Hindu law or the Muslim law or under any other law,could get their marriage registered or re-registered under the SpecialMarriage Act. When that happened, they had the right to make a will in respect of all their assets. For example, a Muslim man of about 65 or 70 was married to a Muslim woman and wanted to make a will. Despite his age and although married for 45 years, he re-registered his marriage under the Special Marriage Act so that he could make a will and bequeath his assets in the manner he wished.

The essentials of a will

A person had to be of sound mind and not a minor (he had to be over 18 years).

Many laws made in the 1800s and the early 1900s had explanations and examples which clarified situations. Section 59 of the Indian Succession Act held that even a person who was deaf, dumb or blind was not incapacitated
if he knew what he was doing. No person could make a will when he was in such a state of mind that he did not know what he was doing. If a person was normally healthy but happened to be intoxicated or very ill at a particular point of time, even though he was normally of sound mind and was a major, he could not make a will at that time; and if he did and if it was proved that he was intoxicated or very ill at that time, then that will would be treated as invalid.

How many wills?

A will could be revoked or altered by the maker at any time when he was competent to dispose of his property. This meant that one could make a will as often as one liked. “You can make one today, you can make one tomorrow, you can make one the day after tomorrow. It’s not that you can make a will only once a year or once in a lifetime.” One could make a will and change it when situations changed, when children grew up or when there was any other difference in one’s situation, for example, if one had acquired something new or sold a property.

There was no limit to the number of times one could make a will. But it was the last will that would prevail. To make a will A will had to be in writing and signed or otherwise marked. If a person could not sign, he could put his thumb impression.

In the latter case, it was important for the witnesses to be credible and to be able to certify that they were present at the time and that the thumb impression was the thumb impression of the person making the will.

It had to be noted that after a person passed away there was no record of thumb impressions and it was not easy to compare them. They were not easily distinguishable to the naked eye.

As for the mark, it had to be so placed (“this is what the law says, and very sensibly”) that it appeared intended to give effect to the writing as a will. Sometimes, people left blank sheets of paper and then a member of the family, or someone else, got hold of that blank paper and filled in writing in a way to portray it as a will.

If the mark was in the centre of the paper, or at the top of a paper, then obviously it was not intended as a will because the signature was normally at the end of the document or in some other suitable place to show that it was intended as a will and not just a blank paper on which interpolations had been made. Need for witnesses There had to be two or more witnesses, each of whom had seen the testator sign or affix his mark to the Yes, I’m willing to talk! Anil Harish just before being requested to speak will, or had received from the testator personal acknowledgement of the signature.

It was not necessary for the two witnesses to be present at the same time; they could be at different places. “However, we prefer that both should be there at the same time when the person signs and both should say that they have witnessed the person’s signature in the presence of the person and in the presence of each other. That’s what we normally write; that is not a requirement of law, we just prefer it that way.”

A person could make a will, sign it at home, take it to a friend and say that he confirmed that he had signed the will. The friend would sign as an attesting witness. And then the testator could go to another person in another location and again confirm that he had signed the will and also confirm to the first witness.

“But one should not get into such situations. It’s better to do it the simple way. Sign in the presence of two witnesses so that it’s very clear.”

Kinds of witnesses

It was better not to get one’s spouse to sign as witness if one wanted to bequeath her anything. Even otherwise, if one wanted to bequeath something to someone, it was better not to have that person as a witness, even though the law said that a legatee could be a witness. In such a case, however, although the will would be valid, the legacy would be invalid.

For example, if someone wanted to give Rs. 1 lakh to a person and asked that person to be a witness, the will would remain valid but the legacy would not take effect and he would not get Rs. 1 lakh. Similarly, it was advisable not to make an executor a witness.

Who is an executor?

An executor was a person named or nominated by the maker of a will to carry out the directions of the will. A beneficiary could, however, be an executor. A person could write that he bequeathed all his assets to his wife and children and was nominating his wife and his children to be the executors of the will. They would be the ones who would put the will into effect.

An executor could be a legatee, but not a witness to the will. A legatee was often made an executor so that it was easy for him to carry out what was written in the will. He knew all the assets, especially if he was a member of the family. Hence this was the normal thing to do. There was no need for outsiders.

One could have outsiders, such as a lawyer, a doctor or a friend, especially if the person making the will felt that there could be some controversy. But this was not a requirement of the law. Members of the family could also be executors. Technical terms and words were not essential in a will; it only had to convey the intention of the testator. It was very important for a will to be clear, to manifest a person’s intention properly and to be enforceable.

Enforceability

A will became enforceable only after the death of the testator. It gave absolutely no right to the legatee till then.In a recent case, an old man who was not always in a proper frame of mind did not have a family, wife or children, he only had servants. He made a will in which he bequeathed a certain sum to one servant, something to another and the rest to charity.

When the servants got to know about this, they went to him and began to pressurise him and the executors of the will, who were his friends, for their entitlements. They said that they were supposed to get Rs. 20 lakhs under the will but they wanted it right away (to buy a house) and did not want to wait till his passing away.

The executors said no; the idea of making the bequest was to reward them for having worked for him for so many years. Besides, it was also meant as an incentive so that they would continue to work for him during his lifetime. If they were given their bequests during his lifetime, then they would buy a house and live elsewhere – leaving the old man alone in the last years of his life. But they were insistent.

“They brought the servant to me. I explained that they will get the money under the will. But the executor has no capacity to give it right now because it did not even belong to him and he could not take charge of it. And if you leave, then the old man can change his will and give it to someone else. So you better stay there and see that he doesn’t change his will; then you will get it later on.”

Stamp paper, registration

Stamp paper was not required and registration was not compulsory. A will could be written on plain paper and could be handwritten; it was not necessary to type it. All that was needed was that it had to be written and was signed or had a mark affixed to it.

Similarly, registration was not compulsory. But if it was felt that there could be some controversy, then it could be registered. In fact, one could even go a step further.

A woman from an erstwhile royal family came to him 15 or 16 years ago and said that there had been a lot of controversies in her family; her mother’s will was litigated, so was her grandmother’s will. She did not want this to happen with her own will.

Anil decided to do something different.

He told her that when she made her will, it would be both registered and videographed. She prepared her will and a videographer took shots of all the pages in such a way that it was possible to read it on the screen. Then he made her read out the whole will. This showed that she was in a proper frame of mind and that she could read and understand.

The woman signed it, the witnesses signed it and all this was videographed. Then they went downstairs, she got into the car and all of them went to the registrar’s office; she got out of the car, sat before the registrar – and all this was videographed. With such strong evidence, it was clear that she was in a proper frame of mind and that she was all right, physically and mentally; there were people around her, witnesses and others. Seventeen years had passed but she had never had any reason to worry about her will.

“We have videographed wills on five or six occasions – but somehow it has so happened that each of those videographed wills has been of women; not a single man has asked for his will to be videographed!” A will had to be expressed simply and clearly. The beneficiaries had to be identified, as also the assets. In some cases, the email id of people was noted, especially if the beneficiaries were outside India, or their address and telephone
numbers.

There was a woman in Cherokee county, North Carolina, who made a bequest in her will to God. The court instructed the sheriff to find the beneficiary. The sheriff gave his report a few days later: “After due and diligent search, God cannot be found in this county!”

Previous wills

When a new will was written, it was not a requirement of the law to mention
details of the previous wills. It was enough in law to just make a will and say, “This is my will”. Any earlier wills would stand revoked or superseded. However, Anil said, he preferred continuity and liked to mention details of previous wills in a new one so that one could see what the person had been thinking and what new situations or sequence of events had made him change his mind.

General or specific

A will could be either general or specific,or a combination of the two. For example, a person could make a will saying, “I leave everything that I have to my wife and children in equal shares”. That was enough. He did not have to list out all the assets. Or, he could say, “At present I have this, that and the other property and I also have movables and so on; I bequeath this property to my wife, this one to a son and that one to my daughter.

The movables I am dividing equally”. Or, he could say something specific and leave everything else to his wife alone. Thus there could be a residuary bequest or a residuary legatee so that the person named got everything at the end.

Assets could be bequeathed to specific persons with conditions attached. This could be an important consideration at times. A man wanted to provide for his parents who lived in the UK (there was an inheritance tax there, but no estate duty in India.) The man wanted to make a bequest to his parents to ensure that they were comfortable; but ultimately he wanted his assets to go to his wife and children. If he did that, then after his parents’ lifetime, and in case he passed away before them, there would be an inheritance tax in the UK. Was there anything he could do to avoid that? Anil suggested giving his parents something called a “life interest”; this meant that he was not giving them the asset completely; he was only giving them the right to use the asset during their lifetime and the right to the income from it, not to the principal amount. That could be specified and elaborated. Thus, it was only the interest that would go to them.

After they passed away, what would pass on would be only that which they had collected from the son’s assets, for example, the interest on his fixed deposits. In case they had not utilised a part of the interest, then it would devolve. But the principal, the properties, the fixed deposits and so on had not gone to them (only the right to use them had). Thus, he would save on the inheritance tax and ensure that after them his assets would go to his wife and children. Were he to bequeath his assets to his parents, these would go to them – but if they didn’t make a will, then it could come back to him, to his brother and to his sister in equal shares. It would not come back in full to his branch of the family.

Giving to charity

Under the Indian Succession Act there were some provisions relating to a bequest to charity. One particular provision applied only to Hindus; but whoever wanted to make such a will was well advised to check the law that would apply to him if they were from a different community. If someone’s marriage had been registered under the Special Marriage Act, then there were other, different provisions and every word would be different, thus giving a different meaning or implication to anything one wrote.

If a Hindu wanted to make a bequest to charity, the will would have to be one that had been made at least one year before the date of his death. If he died 11 months after making a will, then the bequest to charity was no longer valid if he had a wife and children, or if he had a nephew or niece. Relations who were further removed, such as cousins and grandnephews, would not count.

In case a person had close relatives, such as a nephew and niece, and if he wanted to make a bequest to charity, then it would have to be in the form of a will and the will would have to be deposited in the manner provided for under the Indian Registration Act – not just registration, but an actual deposit, that is, the will would have to be put in a sealed cover and deposited with the registrar and entered by him in a separate Register No. 5. Only then would such a will be valid; besides, it would have to be deposited within six months of having been made; otherwise, the bequest to charity would lapse and it would all go to the remainder or the residuary legatee under the will. If there was no residuary legatee, then it would go to the closest relatives in accordance with the law of intestate succession.

Onerous bequests

Sometimes, onerous bequests were mentioned in a will. If a person had a losing business and bequeathed it to one son and another, better, business to another son, the son getting the losing business could say that he didn’t want to take on that business and its liabilities; he did not want to spend the rest of his life struggling with a losing business. That son had the right to refuse such an onerous bequest.

In Australia recently, a man made a will and said, “I bequeath one shilling to my wife so that she may take a tram ride to somewhere and drown herself”. She did not accept the bequest.

In case there were two separate bequests under a will, a legatee could accept one and refuse the other if he felt that it was onerous.

Similarly, a bequest upon an impossible condition was void. If a person said he bequeathed a certain amount of money to his nephew provided he could run 100 miles in an hour, that bequest was void because it was impossible to do so. This example was given in the Indian Succession Act.

Codicils or supplements Another kind of testamentary document was a codicil which was a supplement to a will. It was an instrument made in relation to a will and explaining, altering or adding to its dispositions and was deemed to be a part of the will. A member of a royal family visited his office every year. She had already made a will but asked for some small changes every year. She wanted to bequeath Rs. 5 lakhs to one person, or Rs. 2 lakhs to another. She made such changes every year – but she did not change the whole will, it was only one set of specific, relatively small bequeststhat she kept changing. Under her will she was taking care of her children.

“I don’t like codicils. But sometimes you have to make a codicil because there isn’t time enough, or because it is only a minor change. I prefer to make a will afresh so that everything is clear and it’s all in one place; otherwise, one has to read different documents and still not be sure whether there is anything else in between.”

Challenging a will

A will could be challenged by someone who felt that it had not been signed properly, or not executed properly, or the person was influenced or not in a proper state of mind. It could be claimed that he did not have the capacity or did not understand what he was writing. It was also possible that he was being influenced, or that there was a fraud, or that the will had been revoked by a subsequent will. Such things happened all the time.

A man had been named executor by a woman who had two sons but bequeathed everything to one. The other one was aggrieved and had written to the executor. What was he supposed to do in such a case? The aggrieved son wanted the handwriting checked because he felt that it was not his mother’s handwriting and that she was under his brother’s influence. She had been living with him for two to three years before she died; therefore, the other son wanted to challenge the will.

The executor did not want to function; he did not want to get into the dispute. Anil told him not to hand over the original will to anyone, even if asked to do so. If they wanted to litigate, they could go to court and then he (the executor) could hand over the will directly to the court. If he handed it over to one of the legatees, the other one would complain.

If he gave it to the one who was not the legatee, then he could “destroy” the will or say he was sorry but he had spilled a cup of coffee over it and ruined it. Then the poor legatee would lose whatever rights he had and it would be very difficult to prove. The executor was told to keep the will and write a letter saying he would only give it to the court. And then he could resign from executorship.

Another woman said her brother was challenging their mother’s will. She had filed for probate but he wanted to convert it into a suit; he had filed a caveat saying his mother was not of a proper frame of mind and that she was influenced and so on. Such things happened all the time. One could take some precaution in the form of registration or videography. “But even that does not eliminate the possibility of litigation, because one can litigate about anything.”

Reading a will On a few occasions, there had to be readings of wills as depicted in the movies. In the course of his long practice, the heirs of hardly two or three people for whom he had made a will had come to him. He had to read out the will and explain it. He had had copies made and given to them. After he read out a will once, one of the persons was very upset that the will had not given her what she had wanted. She stomped out of the office with a copy and never again talked with him.

But the will was strong and properly done; it had been prepared more than a decade back and was registered, so no one could challenge it. The mother had survived many years and had not made another will (she could have if she had wanted to). Her intention of ten years earlier was quite clear and remained the same till she passed away.

Bequeathing a tenancy

Many people occupied tenanted premises in Bombay. Could these be bequeathed? Under Section 7, sub-section 15, of the Maharashtra Rent Control Act, if a person who was a tenant of residential premises died, then the tenancy rights devolved upon a relative living with him at the time of his death. Commercial premises were similarly covered and tenancy would devolve.

But if a person did not want to depend only on such a devolution and wanted to spell it out in his will, to bequeath his tenancy rights to his son, or daughter, could he do so and what was the result of that? The Supreme Court of India had held in the case of Bhanwarlal Labhchand Shah that a tenancy could not be bequeathed.

If someone were to write in his will that he bequeathed his tenancy rights to someone, then that bequest was valid but the landlord could file a suit and say that he wanted the tenancy back because the earlier tenant had tried to bequeath it to a son or daughter.

This was better avoided. In writing a will where there was a tenancy, it was better to say, “I am a tenant of such and such premises, my son, daughter, wife are living with me in the house and I wish that it should go to this (named) person”. This meant that it was not a will and did not fall within the scope of Section 2(h) of the Indian Succession Act.

All that he had said was that he wished that the tenancy flowed in a particular manner. In other words, the person was only wishing, not bequeathing; but the family members would know the desire of that person and would have to sort it out amongst themselves. They would have to tell the landlord what the person had mentioned in his will.

Genuineness of a will

After a person died, how was one to know that a particular will or document was genuine? How did one take forward the process of implementation?

What happened if a person had made a will, nominated executors and made specific bequests or general bequests and had a residuary legatee? Who took charge of the assets, how did one prove that it was a genuine will and that a person was entitled to something?

Supposing a person had given a loan of Rs. 1 crore to someone and died. If one of the sons went to that debtor, or to the company with which a fixed deposit had been made, and asked for the Rs. 1 crore because it had been left to him, the company would say it did not know him. He was only showing some papers, but was that the last will, was it done at a time when the person was not ill? Was it a forgery or a fraud? The person would have to prove the genuineness of the will.

Probate of a will

Probate meant proof. If a person had left a will and if one wanted to act upon it to prove it, then one would have to file a petition in court for probate, that is, for proof that the will was genuine. The court would go through a process (in Bombay it took three to eight months) before granting a probate to an executor. It could also be given to a legatee or someone else who could prove to the court that he was genuinely interested in doing the right thing.

Once the court granted probate, then the executor or administrator would be able to write to all the persons with whom monies or funds were lying. In the case of a co-operative society, if the deceased person had not made a nomination, the executor or administrator could say that he was the executor in respect of the will of that person and he wanted to get all the assets and to distribute them in accordance with the will.

In Maharashtra, the court fee for a probate was a maximum of Rs. 75,000. It was good that there was such a cap, for Rs. 75,000 was not a very big sum. In most States there was no cap and in the case of a person leaving a large estate the court fee could be 2% or 3% of the estate’s value. Today, flats in Bombay and most parts of India were worth crores and if one happened to have land and factories, then the court fees could be very high indeed.

“So if a person has assets only outside Bombay, it’s probably better for that person to buy a flat in Bombay, make a will in Bombay and apply to the Bombay High Court for probate so that the court fees are not too high. If not a flat, have a fixed deposit or some assets here.”

Letters of administration

There was a difference between probate and “letters of administration”. If a person had made a will and appointed executors, what happened if the executors said they did not want to act as executors? Then someone else would have to apply to the court, but it would then be called “letters of administration with the will annexed”.

The person would say, “I’m not the executor, therefore I cannot apply for a probate directly, but I am applying for ‘letters of administration with the will annexed’.” The court would say, “all right, the will seems to be fine, you’re not the executor but we’re going to appoint an administrator”. Or if a person had not made a will and left immovable properties, then again it would be called “letters of administration” and not probate and which would be given by the court.

If there were only movable properties,then one could apply for a “succession certificate”. This was a different form of the same grant (as “letters of administration”).

Making a gift Often, people worried about litigation after their demise. They were bequeathing
something to a son, something else to a daughter, but there could be litigation later on. In some such cases, it was better to make a gift of it in one’s lifetime (although many people were reluctant to do this because they lost control over the asset).

If a woman with two sons wanted to give a flat to one and not to the other for whatever reasons (it could be that the other one had run through a lot of money or had created liabilities for the family, “which is quite often the situation”), then the woman was best advised to make a gift during her lifetime, so that there was no dispute later. But she would also need to protect
herself, so she could say, “I’ll make a gift, but subject to the condition that I can use the flat during my lifetime”.

Thus, the flat would get transferred in the name of the son in the records and yet she would have the right to use it. After her, it would belong to the son to whom it had been gifted; there was no need for a will in such a situation.

Inheritance tax

“We are very lucky that there is no inheritance tax or estate duty in India. It was removed not in 1984 but on March 16, 1985; I will never forget that date, because if a person had died on March 16, 1985, his estate was subject to duty to the extent of 85% of its value. And suddenly, on March 17, 1985, the duty was not there.

“This year, our Finance Minister talked about it twice and there was a lot of speculation on estateduty being reintroduced. Luckily, it was not… We have to see which government is formed next and whether estate duty comes back.But I’m surprised that they even considered this, because many of our Parliamentarians are the richest people in the country, they are the ones who will suffer the most on this account.”

No gift tax

There was no gift tax on gifts to close relatives. But a gift to someone not closely related would attract income tax under Section 56 of the Act. There was, however, a stamp duty on documents relating to gifts within the family in the State of Maharashtra and 5% on other gifts. There was no stamp duty on wills. Stamp duty outside Maharashtra was different and it was necessary to note this in advance.

Anil said that most of what he had stated were generalisations and there were many different kinds of provisions.

For example, the Maharashtra government was thinking of introducing a local body tax which would raise the stamp duty.

‘MAKE SURE THATTHE NOMINEE AND THE LEGATEE ARE ONE AND THE SAME’

Nominations
The question of nominations came up very frequently. What was its impact, how was it given effect to and which overrode the other? Did a nomination override a will or did a will override a nomination?

For most purposes, a nomination was only the appointment of a person as a trustee to look after a property for a certain period of time. When one filed a nomination form in a co-operative society in relation to shares and premises, and if one also left a will, then the nomination did not prevail over the will. The nomination was relevant only for a temporary period so that the society knew whom to send the bills to and who would look after the property.

If a person made a nomination in favour of X and also a will in favour of X, they coincided and the society would act on the nomination. Recently, when a person made a nomination in favour of X and a will in favour of Y, X approached the society asking for the premises to be transferred in his name.

The society said yes, it would do so because under Section 30 of the Maharashtra Co-operative Societies Act, it was obliged to act on the nomination.

The man would be recognised and the shares transferred in his name – but he had to remember that he was only the nominee, not the legatee under the will. There was a possibility that the other person would file against him.

Sure enough, the other person had filed and now the court would have to hold in favour of the legatee as long as the will was genuine. The nominee, therefore, only held temporarily and had to hand over to the legatee.

Often, a person with minor children could not get their names on the records of the society even though they would ultimately be entitled to it. Such a person could make a nomination in favour of a friend or a relative and a will in favour of the children; or if he died without a will, then in any case the children would inherit and the nominee would have to hold as a trustee and hand over the premises to the beneficiaries when they attained the age of 18, or in accordance with the will.

However, this was not the position under every law. For example, the Companies Act said under Section 109(a) that “every holder of shares in or holder of debentures of a company may, at any time, nominate, in the prescribed manner, a person to whom his shares in or debentures of the company shall vest in the event of his death”. The Bombay High Court had interpreted this as meaning that the nomination was itself a bequest and if a person made a will in favour of X and a nomination in favour of Y, then the nomination would prevail over the will, because the nomination was like a will and the shares would vest in the event of his death.

“So you have to be very careful, ensure that the nominee and the legatee are the same; it is only in very exceptional circumstances that you should have different persons. And if you do, then you should explain the circumstances; you can say, ‘I am nominating so and so because my children are minor or my grandchildren are minor’.

You may still not be able to get over this easily; so in the case of a company you should write, ‘I nominate X in his capacity as trustee for my minor children’. That will make it clear, that you are not giving it to him personally but only subject to a condition.

“Sometimes, it happens that the person just doesn’t want to make a will; he thinks that by making a will he is sending an invitation to the ‘afterlife’ to arrive quickly! But, as you can see, one can make a will and change it all the time.

“Therefore, whenever you feel like it, just make a will. Just the fact that your thoughts turn to making a will does not mean that you are over the hill,” Anil concluded.