WILL POWER: (Above) R.S. Lodha and (top) Birla House at R.N. Mukherjee Road, Calcutta

Exactly two years ago this month, a will wound its way straight into the eye of a legal storm. It was not an ordinary will, documenting the wish of any ordinary deceased person to transfer his legacy to his legal heirs. It was the will of none other than Priyamvada Birla, widow of the late industrialist M.P. Birla. After her death on July 3, 2004, R.S. Lodha, a chartered accountant closely associated with the Birlas, claimed in a court that he was the sole beneficiary of the childless couple’s enormous wealth.

He was armed with what he alleged was a letter from Priyamvada Birla written to him in 1999, in which she expressed her desire for him to take charge of the couple’s estates, properties and business holdings. Lodha argued that the letter should be treated as Priyamvada Birla’s last will. His lawyers also pushed to nullify a will that dated to 1982 and which named the Birlas’ family members as beneficiaries. Members of the Birla family united to legally object to Lodha’s claim over the Birla empire.

Two years on and the matter is still sub-judice. Explains Jayanta Narayan Chatterjee, advocate, Calcutta High Court, “It takes years to dispose of cases pertaining to wills.” Lawyers argue that the nature of the laws governing the drafting, signing, execution and so on of wills make this delay inevitable. In order to understand this, it’s first necessary to review these laws.

Wills made by Hindus, Sikhs, Jains, Christians or Buddhists come under the purview of the Indian Succession Act (ISA), 1925. Wills made by Muslims are governed by Muslim personal law. ISA defines a will as “the legal declaration of the intention of the testator (the person making the will) with respect to his property, which he desires to be carried into effect after his death.”

However, Calcutta High Court advocate Ashok Sharma points out, “While it’s considered a legal declaration, the law does not make it mandatory for a legal authority to be present during the drafting and signing of the will.” Also, a will can be drafted by any person on any ordinary sheet of paper, requiring absolutely no official seal such as a revenue stamp.

Among the few conditions for a will to be considered legally valid is that it has to be drafted by “a person of sound mind, who has reached the age of majority (21 years old or above).” Minors (those below the age of 21) and “lunatics” are not eligible to be testators. It’s also mandatory that the will’s signing should be “attested” by two witnesses. Furthermore, a testator can at any time during his lifetime decide to change or cancel his will by merely writing another one like the first one. All he has to do is to put a date on the will and specify that it is the “final one”. And he can do this as many times as he wishes.

Therefore when a beneficiary appeals to a court after the death of the testator for the enforcement of the will (the process is known as probate), the court first wants to remove any doubt that the will is the final one. The court also wants to ensure that the claimant is indeed the undisputed beneficiary before approving the probate. “The court at this time orders the person seeking probate to ‘satisfy’ it that there are no other contenders,” explains Chatterjee. “And obviously the establishment of this proof is a time consuming process. The person seeking probate often publishes notices in newspapers to announce his probate and invites anyone wishing to contest his claim to appear in court,” he adds.

This is where the question of registering a will comes in. Says Chatterjee, “When a will is registered, the court takes it to be the final one, unless there are grounds for suspicion. This is because after a document is registered with the registrar, any changes or cancellations too will have to be registered. This eliminates incidences of claimants not mentioned in the will.”

Mananka Ray, a registration official, says that it’s not very expensive to register a will. Says Ray, “The registration fee is only Rs 18. Other costs include the cost of the volume (the copy of the registered document kept at the registrar’s office), which is Rs 20 per page.”

However, registration is not compulsory. But it’s mandatory for a will to be probated for it to be considered valid. For instance, many companies like ITC insist on a will being probated as a precondition for transferring share certificates to the beneficiary. The cost of probate varies according to the property’s value mentioned in the will. Chatterjee says, “The court appoints a valuer to assess the property’s value.” However, there is a maximum limit to the probate cost and in West Bengal the limit is Rs 50,000.

Immovable properties, if willed to a person, can be transferred after the death of the testator once the court has granted probate. After that, the inheritor has to obtain a “mutation certificate” from the local municipal corporation or panchayat.

Of course, as Sharma points out, you can choose not to leave a will. “After all, if a person dies intestate (that is without writing a will), by law his wealth is equally distributed amongst his legal heirs. For instance, in the case of a Hindu man, his mother, wife and children (class 1 heirs) get equal shares. In the absence of class 1 heirs, other close relatives (class 2 heirs) become the beneficiaries,” he says.