A Will differs from contracts and other executed documents in one important aspect. Unlike other documents, a Will only takes effect from the death of the person who has made it (called the testator). The testator’s testimony is not available to determine whether the Will is valid and whether it constitutes the testator’s true intentions. Thus, the validation and interpretation of a Will is rather unique for the significance of surrounding circumstances, and the identity and status of parties.

This being the case, it becomes advisable not only to prepare a Will that is clear and legally valid, but also to ensure that if a challenge to the Will is anticipated, suitable safeguards to fortify it have been put in place. In this post, we discuss the legal grounds on which a Will may be challenged, and some of the commonly adopted precautions that testators may put in place to help validate their Wills and to assist in giving effect to their desired intentions.

Grounds for Challenge

After the testator passes away, the Will may be challenged before a Court by any person who claims to have an interest in the testator’s estate. If the Court finds, based on the evidence placed before it, that the challenge is sustainable, it will declare the Will void and set it aside.

Continue Reading Fortify Your Will: Safeguards to Ensure that Your Will is Validated

Photo credit: Indian Express, August 23, 2017

Through its historic ruling delivered by a five-judge bench in the case of Shayara Bano and Ors v. Union of India on August 22nd 2017, the Supreme Court of India (SC) liberated Muslim women from the perpetual fear of arbitrary and whimsical divorce. The SC banned the regressive practice of instant ‘triple talaq’, which allowed Muslim men to unilaterally end their marriages simply by uttering the word “talaq” thrice without making any provision for maintenance or alimony. These often happened on the flimsiest of grounds, if any, which left the women at a serious and grave disadvantage.

The long-standing battle to get triple talaq abolished gained renewed momentum in October 2015, when the SC decided to look into the matter of Muslim women facing gender-based discrimination within the community. A Constitutional Bench of the SC was set up to examine if Muslim women face gender discrimination in divorce cases.

Continue Reading Sin! Sin! Sin! : Supreme Court Declares Triple Talaq Unconstitutional!

A Will is one of the most frequently used tools in the process of succession planning. A Will is made by testators at the appropriate stage(s) of their life, and usually benefits family. However, a fear that looms large in their mind is the risk that someone may challenge the Will, causing it to get stuck in the labyrinth of the Indian court system. This fear is likely to be more acute when the testator knows that there is a specific person, either within the family or outside, who may challenge the bequests (or lack thereof!) under the Will. Unfortunately, there are many instances of such messy and protracted disputes. The main victims who suffer in these disputes are the testator’s family – they will not inherit the estate until the dispute is settled. Hence, the testator’s fears are completely justified.

To avoid these consequences, one option the testator can explore is entering into a contractual waiver with such persons – whereby any one or all of the beneficiaries (those who may benefit under the testator’s will, family or non-family) forego their right to challenge the Will. This would mean that the family can inherit the estate smoothly and quickly, without dispute or hassle.

But why would a beneficiary agree to do so? It ultimately comes down to a commercial decision and negotiation. Beneficiaries will be concerned that certain assets or amounts from the estate should come to them (for reasons which may not always be robust, or which may withstand a deeper legal scrutiny). If the testator can agree to meet such requests through the Will, or even by way of a lifetime transfer, then the beneficiaries may be willing to enter into a contractual waiver of their right to challenge it. But this is a commercial decision that needs to be taken by both parties. Testators are ultimately buying peace for their family after death. This article further explores the legality and practical aspects of such a waiver.

Continue Reading Can You Waive Your Right to Challenge a Will?

Recently, a Division Bench[1] of the Bombay High Court hopefully settled the controversy regarding the rights of legal heirs as opposed to nominees. The Court held that the rights of legal heirs supersede the rights of the nominee of a shareholder.

The controversy arose with two Single Bench Bombay High Court judgments: Harsha Kokate v. The Saraswat Co-operative Bank Limited[2] (Kokate case) and J. J. Salgaonkar v. J.J. Salgaonkar[3] (Salgaonkar case). In the Kokate case, relying primarily on Section 109A of the erstwhile Companies Act, 1956 (1956 Act), the Court held that the nominee would be entitled to all rights in shares and debentures, including ownership rights, to the exclusion of all other persons. Thus, upon death of the shareholder, the securities would automatically get transferred to the nominee, and not the legal heirs. Continue Reading When Succession Prevails Over Nomination

Background

In December of 2015, the Delhi High Court in its decision in Sujata Sharma (“Judgement”) laid to rest a long-standing and archaic traditional notion in Indian Hindu succession law (“Succession Law”): this notion effectively prevented a woman member of a Hindu Undivided Family (“HUF”) from acting as the karta (manager/ person-in charge of a HUF). To those unaware of these concepts under Succession Law, a HUF is a construct under Hindu law that comprises of all persons lineally descended from a common ancestor within four generations. Briefly put, a HUF may be considered as a concern that is comprised of stakeholders who share a common lineage and as a concern that holds property and undertakes commerce or other activities, for the benefit of its stakeholders.

Continue Reading Modernising the Traditional Hindu family