A will or a testament can be referred to as a legal document through the means of which, an individual, the testator, expresses his or her wish pertaining to how his property shall be bequeathed amongst persons upon his or her death. During this process, the individual is also required to name one or more persons as the executor, in order to manage the estate until its final distribution, once and for all. According to section 2(h) of the Indian Succession Act, 1925 a Will refers to a legal declaration of the intent of an individual with respect to his property, which such an individual desires to take effect upon his death. In the current situation of the ongoing pandemic, the ambiguities related to the law pertaining to how and when a will can be made are many. However, the same is being cleared in this article.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. Every person who is competent to contract is permitted to make a valid will but he must be a major, of sound mind and willing to write a Will without any coercion.
How can an individual make a will from the hospital itself under the present scenario?
Any valid will can be executed by the testator of such a will by simply signing the same in the presence of two viable witnesses who are independent witnesses and may be other patients or doctors as well. In case the testator is only able to bequeath the said property under his will through a handwritten process, that can also be permitted considering the situation and the urgency involving the matter, however it is always advisable to have a finely printed or typed will present for its future eligibility and sanctity purposes. However, one important and one of the most crucial aspects to consider and take into account in such a situation is that one of the witnesses is mandatorily required to be the testatorâ€™s own doctor. It is pertinent for the testator to ensure that the signature of the doctor is present and accompanied along with a duly signed medical certificate attesting to the soundness of mind and mental fitness of the testator while making such a will. This is crucial since one of the main aspects over which all wills are challenged is the capacity, whether physical or mental of the testator while making his or her will.
It is also advisable to remain highly prudent under this situation and ensure that the testator records the entire procedure involved through a video recording while he reads the will out loud so as to prove the legality of the will in its entirety. In case, a situation arises wherein the testatorâ€™s health does not permit him to indulge in such a recording procedure, then another trustworthy individual should continue with this process on the testatorâ€™s behalf while acknowledging the components of the will in front of the said testator and make it absolutely clear that such a will has been drafted of his own free will and under no duress or pressure. The testator is then allowed to sign the will along with the two witnesses present, one of whom must be his own doctor, as reiterated before.
In a situation where there is a possibility of recovery of the testator and his subsequent wish to make any amends to the previous will, he is free to do the same and register the newly amended will as per his own wishes as well.
Procedure for division under insurance proceeds
My father has a life insurance policy in which the nominee is my mother. He has also made a will leaving all his assets in equal proportion between my mother, sister and me. Will the insurance proceeds also be divided between us?â€”Name withheld on request
Under a situation wherein the testator is uncertain as to the division of the future insurance proceeds, then the question regarding the difference between a nomine and a legal heir must be cleared. More often than not all such nominations to bank accounts and insurance policies are ensured so that the estate or any such property remains protected till the legal representatives of the deceased take appropriate steps regarding the same. This is also done in order to provide such assets with a valid discharge under the situation. Therefore, a nominee, by definition, cannot become the owner of such money however, such an individual still holds the position of a â€˜trusteeâ€™ for the legal heirs of the deceased. This decision had been undertaken by the Supreme Court in the case of Aruna Oswal versus Pankaj Oswal and Ors and it still remains a valid precedent under the current situation.
However, as far as life insurance policies are concerned, exceptions can be made under situations wherein the nominee happens to be an individual belonging to the deceased memberâ€™s family such as his spouse or children. Under this situation, these family members by virtue of their relation to the deceased are beneficially entitled to the life insurance proceeds, excluding all others including any other legal heir. The Insurance Act, 1938,states that the holder of a policy of insurance over his own life is entitled to nominate his spouse, and such a nominee shall be beneficially entitled to the amount payable by the insurer to her or him unless it can be substantially proven that the holder of the policy, could not have under any circumstances, conferred his same beneficiary title upon such a nominee.Conclusion
The current situation of the pandemic has a lot of individuals facing legal questions pertaining to how a wll can be made urgently under a scenario wherein no will is present. Thus it becomes pertinent to answer the questions relating to the law at present regarding the same wherein the new stipulation which has been added states that one of the witnesses of the testator who makes the will must be the testatorâ€™s own doctor, without whom such a will shall e deemed as void and illegal. Thus the current position needs to leave behind ambiguities for the sake of all patients currently in need to legal knowledge pertaining to wills.
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