The Economic Times | Anju Gandhi
Making a will is a simple process as it can be written on a plain paper giving clear rights to beneficiaries to your assets without contradictory conditions. It is the execution process which needs to be followed carefully so as to reduce disputes related to authenticity of a will. A will is often disputed on the grounds of coercion / fraud / lack of mental health, witnesses not signing together etc.
Most common points of dispute over a Will:
- Unsound mind of the person making the will;
- Undue influence on the person making the will;
- Alteration of executed will by another person.
Execution of a will is the process of signing a will and getting it attested by two witnesses.
Methods of overcoming these disputes
All these can be effectively dealt with by adopting the following safeguards while executing a will:
i)Obtain a doctor’s certificate on the date of execution of the will. The certificate should clearly state that you have been examined by a doctor and that you are of a sound mind and capable of independently taking decisions;
ii)Video record the execution of the will while you sign it in the presence of two witnesses and they also sign as witnesses in your presence. During the recording make sure that an independent person such as your advocate or a trusted family member asks you and the two witnesses, pertinent questions on the document being signed etc. which would confirm that all the parties to the execution process are aware of their actions;
iii)The doctor issuing the certificate of good health may also attend the execution of the will and be video graphed.
iv)Register the will with the appropriate office of Sub Registrar of Assurances.
Registration of a Will
Since registration of a will is optional under the Indian Registration Act, non- registration of a will would not by itself be a suspicious circumstance related to such a will. However, there are several court cases which have been resolved in favor of wills which have been registered. The Supreme Court of India upheld a will which was registered even though the will was made in favor of a person who was brought up as a family member and the wife and a widowed daughter in law did not get any benefit from the estate. The fact that the maker of the will himself presented the will for registration to the Sub-Registrar was considered to be an important fact.
Nowadays video recording the process of signing the will by the maker and the two witnesses has increased even though such a process has no mention in law. The primary reason is that the proof of execution is recorded and can later be produced as evidence in a court of law which is difficult to challenge.
There has been an increase in using video recordings as evidence in many cases in courts. Video recording is permissible evidence and can be displayed before a court as proof of evidence to prove a point. This option has been available for several years now. In one court case Sayar Kumari vs State & Ors. on 9 October, 2009, during 1985, Delhi-based Sayar Kumari had petitioned for the probate of a will of her husband’s grandmother regarding a property at Kashmiri Gate, which was being contested by her father-in-law. The court went through the physical copies of the will, as well as a video recording of the execution (process of signing the will and getting it attested by two witnesses) of the will.
It then ruled in her favour, saying it had made the process easier, and validated the use of video recordings for a will’s execution.
Summarizing the benefits of registration and video recording of execution of a will:
- Strong proof as it is a bonafide record with Sub Registrar who is a government officer and is also expected to ensure that the testator was present and was in sound mind;
- A registered will is government record and such record can be altered only by another registered codicil/Will by the same person;
- Presence of two witnesses is recorded in government office;
- The entire process of signing of the will is laid out before the court as video recording which enhances the validity of execution of the will;
- Pictures are taken which show the physical condition;
- Corroborates the statements of the witnesses;
- Possibility of coercion / fraud is practically eliminated;
- Electronic record can be authenticated by the forensic experts to further prove that it was created on a specific date and has not been tampered/altered.