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It is not necessary to get a good-health certificate at the time of making a Will

LiveMint logoLiveMint 05-09-2017 Marylou Bilawala

I live in Mumbai and intend to make my Will. Does the doctor testifying my sound health and sound mental condition have to be from a municipal or government hospital or will any registered medical practitioner’s certificate suffice?

—Odette Noronha

There is no requirement under the law to obtain a certificate from a doctor at the time of making a Will, that the testator or testatrix is of sound health and sound mental health. However, since Section 59 of the Indian Succession Act 1925, inter alia, requires that the person making his/her Will should be of sound mind, as a precaution against challenges to the Will on the ground that the testator/testatrix was not of sound mind at the time when drawing up the Will, sometimes (and especially when the person executing the Will is a senior citizen), a certificate of a doctor is obtained certifying the state of mind of the testator

Since there is no specific requirement under the law for a medical certificate at the time of executing a Will, there is no requirement that a doctor providing such a certificate has to be from a government or municipal hospital.

I want to mark money out of my mutual fund portfolio, the value of which changes frequently. How do I allocate a specific amount to one person? Can an addendum of mutual fund and folios, which may be updated every year to reflect the current positions, be attached to a Will? Or does the Will need to be changed every year?

—Arun Gupta

There is no need to execute a fresh Will every year to reflect the current position of your financial investments. Financial investments (such as mutual fund investments and fixed deposits) can be referred to in a general manner in the Will, and amounts standing to your credit need not be mentioned under the Will. For example, you may bequeath all your right, title and interest in investments with specific mutual funds (which you would list specifically) or in all mutual funds where you hold units to a particular person. If the investments undergo a change, you do not need to execute a codicil—or a fresh Will. If you choose to bequeath a specific financial asset to a specific legatee (and you have not left all your financial assets of a particular class to one beneficiary) then you would need to include a brief description of the specific financial asset that is being bequeathed to a specific beneficiary; for example, where the mutual fund where the investments are held and the reference number. In case your financial assets undergo a very substantial change, you may choose to update your Will by executing a codicil or by revoking your previous Will and executing a new Will.

Can I nominate my son-in-law as executor of my Will, while my daughter and son are major beneficiaries of my Will? Is it legally sound to do so?

—B. Datta

An executor is responsible for administrating the estate of the testator and applying for probate, if required. Since an executor has to carry out the testator’s wishes, it is important that the person being appointed is a person in whom the testator has confidence. The only requirement is that the executor should be of sound mind and should not be a minor. Therefore, you may appoint your son-in-law to be the executor of your Will. However, note that unless you are Hindu, your son-in-law should not be an attesting witness to your Will, if his wife is a beneficiary under the Will. This is because any legacy or bequest given to a person who attests the Will, or to his wife or husband or to any person claiming under either of them, shall be considered void. However, this provision does not apply to Hindus.

Both my parents expired without leaving a legal Will. In my mother’s demat account, I am the nominee who gets the ownership of shares. Will it belong to me or will it have to be equally shared by other legal heirs?

—Amit Bhatia

Nomination does not confer an absolute right of ownership on a nominee (since a nominee merely holds the asset as a trustee and is legally bound to transfer it to the legal heirs). Accordingly, nominations will not over-ride the laws of succession. The position has been clarified in the cases of Shakhti Yezdani vs Jayan and Jayant Salgoankar 2017(1) Bom CR 319 & Sarabati Devi and Anr. vs. Smt. Usha Devi. Accordingly, the shares held in your dematerialised account will have to be shared by the legal heirs of the deceased.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.

Queries and views at mintmoney@livemint.com

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