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You can revoke a Will even if you had called it your ‘last Will and testament’

LiveMint logoLiveMint 18-07-2017 Marylou Bilawala

I have seen many Wills start with the words ‘Last Will and Testament’. Is that the right way to do it? If I think that I may need to change my Will, should I still use the words ‘Last Will’? What is the right way to write a Will? Please advise.

—Vikram Apte

It is customary to use the words ‘Last Will and testament’, as it is the last Will made by the testator (subject to it being duly executed under law) which takes effect. While this language is used, it may be revoked later and substituted by a later Will, which will then be the last Will of the testator. However, it may be noted that there is no prescribed language for making a Will, and whichever is the last Will of the testator (executed in accordance with applicable law), is required to be given effect to. In case you wish to change your Will after you have already made one, you are free to do so even though you may have used the words ‘Last Will and Testament’. You may change your Will at any time during your lifetime, provided you are competent to contract (i.e., of sound mind) either by executing a codicil to your last Will or by making a fresh Will and revoking your previous Will. In your new Will, you should specifically mention the date on which your previous Will was created and categorically state that it stands revoked. Also, it may be advisable to destroy your previous Will to avoid confusion.

Please note that registration of a Will is not mandatory in law; however, I would recommend that if you had chosen to register you previous Will (which is now being revoked) then you should also register your new Will or codicil and cancel the earlier registration.

A property was registered in the name of three people: my uncle, his wife and wife’s sister. All three made a Will on a stamp paper that after their death, the property should be donated to Islamic charity. In 2010, my uncle’s wife’s sister also made a handwritten Will that after her death, her share in the property and everything else will go to her sister. But in 2012, she passed away. And in 2015, her sister (uncle’s wife) also passed away. My uncle is the only person alive out of the three. Now, my uncle’s brother-in-law is claiming a share in property according to Indian Muslim law (Sharia law) and has also filed a case in court for injunction order/Notice of Motion that property cannot be sold or transferred to anyone. Can the brother-in-law claim a share for both the sisters, according to Sharia law? Can he put an injunction order/stay order on the property? If not, which Act of Indian Muslim law would be applicable to stop him from claiming his share and stopping him from injunction order on property?

—Farukh Khan

We have assumed that both your aunts and your uncle had an equal share in the property as co-owners and that therefore on the death of one of them, the property would not vest in the survivors.

In India, matters relating to succession and inheritance of Muslims are governed by Muslim personal laws.

Accordingly, a Muslim cannot dispose of by Will more than one-third of what remains of his property after his funeral expenses and debts are paid. Therefore, the remaining two-thirds must go to the heirs of the deceased as on intestacy (i.e., the persons entitled to the estate of the deceased as per Mohammedan law) unless his/her heirs consent to the bequest in excess of one-third of the deceased’s property in favour of another. This would apply even in case of a charitable bequest.

Please note however that the above rule restricts a Mohammedan from bequeathing more than one-third of his/her estate by Will, does not apply to certain sects of Muslims, like Khoja Muslims, Cutchi Memons or Muslims who have solemnized their marriage under the Special Marriage Act.

It is also pertinent to note that in the case of Sunni Muslims, while a bequest to a person who is not an heir, to the extent of one-third is permissible, any bequest to an heir is not valid unless the other heirs of the testator consent to such bequest (even if the bequest is within this permissible limit of one-third) and such consent bequest must be given after the death of the testator.

Therefore, if your uncle’s brother-in-law is an heir as per Sharia law, he would be entitled to a share in his sisters’ estate if he has not consented to such bequest.

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

Queries and views at mintmoney@livemint.com

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