Thursday, February 15, 2018

How to make a Will ?




(The laws of inheritance are complex depending on religion and customs. The discussion in the present blog is confined to Hindus, Jains, Buddhists and Sikhs.)

Glossary:

Testator: The person who makes the will.

Estate: The assets left by a deceased person after the death. Assets include tangible and intangible assets less the liabilities, if any.
Codicil : A document made by the testator in connection to a Will; explaining, altering, deleting or adding one or more clause in of the will. Codicil is to be made by the testator in the manner a valid will is made.

Executor: A person OR AN ORGANISATION named in the will by the Testator to carry out the directions for distribution of the estate.

Beneficiary:
A person OR AN ORGANISATION who is named in the will to receive the bequest made by the testator.

Probate: A copy of the will certified by the court certifying the validity of the Will and confirming the powers of the executors. This also confers the rights of the beneficiaries.

Letter of Administration: If the testator has not named any executor, the court will appoint a one and the appointee will be give an authority called Letter of Administration to distribute the estate of the testator as directed in the will.

What is a Will?                      

As defined in (Section 2 (h) of Indian Succession Act 1925:

will is the legal declaration of the intention of its maker as to how his /her assets are to be disposed of after his/her death.

Will is also known as Testament or Will and Testament.

The maker of a will is known as testator and the person/organisation in whose favour the asset/interest devolves is called beneficiary. A beneficiary can be any person/organisation irrespective of relationship.

Why making a will is important:

A will defines who will get how much from testator’s assets after his/her death. Will is a popular theme in soap operas and films wherein, dear ones are found engaged in acrimonious litigation for property after the demise of a relative. Reel life story is no different from real life story, particularly when relation weakens and plot thickens. 

A properly drawn will would obviate such a situation and friction amongst the heirs. Though a will can be challenged in the court on various ground, there is very rare chance of acceding, by the court, to the prayer of the aggrieved parties if a will is properly drawn. This fact deters the beneficiaries/aggrieved parties from resorting to litigation. Apart from legal aspects and amicable division of the assets, a will is an important document to reward the person (irrespective of the relationship) who has supported the testator or support an organisation whose cause the testator values and wishes to patronize. 

If the deceased person has not made a will, his/her assets will be divided as per the inheritance laws as applicable to him/her which may not distribute the estate as per his/her wishes or as per the deservingness of an heir in context of fulfillment of duties, as an heir, towards the testator. Will is a sound dispensation for addressing some of the stark realities of life, particularly, during the fag end of life and more so in “modern” society.

Types of Will:

There are various types of will, most prevalent being Unprivileged Will written by any person other than a soldier, a sailor or an airman engaged in war or expedition (they can write Privileged Will which need not be signed by the testator when the will is written in the presence of, and signed by two witnesses). As such, practically most of the individuals are covered under Unprivileged Will. The present write up focuses on Unprivileged Will.

Who can make Will?

ü  Any person who is of sound mind to comprehend the implications of what  he/she is doing  and over 18 years of age can make a will.

ü  A deaf or a dumb or a blind person can also make a will.

ü  A married woman can make a will of the assets which she can alienate in her own right.

ü  A person of unsound mind can make a will during the period when he is capable to consistently comprehend the implications of what he/she is doing.

When should you make Will?

You can make Will at any age when you are legally competent to make a will. It is well said that life is quite unpredictable and it is more so when one is in later stage of life. This implies that, more the age, greater the need to make a will.

When should the Will be altered/changed/amended/revoked?

Will can be altered/changed/amended/revoked at any time by the testator while  he/she is alive.

In order to prevent litigation, though cannot be ruled out totally, it is desirable to change the will on happening of one or more of the following  events :

ü  Birth of a child in the family
ü  Death in the family
ü  Very High growth/decrease in assets
ü  Divorce
ü  Marriage (though as per Section 57 of Indian Succession Act, a marriage per se does not revoke the will in case of Hindus, Jains, Buddhists and Sikhs.).

Refusal of accepting the bequest by the beneficiary:

If any of the beneficiaries named in the will declines to accept his/her bequest, the bequest will be distributed as per the inheritance law as applicable to the testator. If the testator envisages such a situation and wishes to keep his asset beyond the provision of inheritance laws, he/she has to name a beneficiary who will get the bequest of the beneficiary who declines to accept the same.

Important ingredients of a Will:

A will attracts least of the legal technicalities of a legal instrument at the stage of making it. Law does not stipulate any specific format of a Will. However, following are the core features a will:

1. Though law does not stipulate but for practical purpose, the document may be titled "Last will and testament" or "Last will". The identity of the maker: Full name, age, religion, residential address
1.1 A statement to the effect that the will is being made with sound mind, of own volition and with full understanding; without any undue pressure or undue influence of any person.
2. A statement to the effect that the present will is the last and the only will and previous will stands cancelled.
3. The identity of each beneficiary in whose favour any or all bequeath is made
4. Full details of the bequeath made in order to avoid any confusion, at the time of distribution by the executor, in identifying the bequeath, e.g., in the case of –
Ø  Property: Popular name if any, Location, Property number as stated in the Govt Records, Area, common description of property or description of the adjacent property on each direction, etc.
Ø  Bank deposits: Bank name, Branch, A/c Type, A/c Number, etc.
Ø  Cash: Amount in figures and words
Ø  In case of chattels and personal effects: full description of the items
5. Place and Date of signing the will by the maker. Date is very important part of the instrument.
5.1. Signature / Thumb Impression of the maker at the end of will and also similar signature on each page of the will, in the presence of two witnesses
6. Two witnesses to attest (sign) to the effect that the above signature is put in their presence. Full name and addresses to be noted under their signature.

Other important aspects of making a will:

1. Will does not attract any Stamp Duty. It can be made on simple plain paper. One does not need even a ledger (pista colour) paper. It may be typed or handwritten. It can be in any language generally used but it is desirable that it should be in the language which can be comprehended by the testator.

2. Will takes effect only after the death of the testator.

3. Will can be registered with Sub Registrar Office (SRO). This would give more credibility as to the genuineness of the will but bear in mind that still it can be challenged in the court. Will can also be registered after the death of the testator. 

4. It is desirable, of course not required by law, that witnesses are younger than the maker so that in the eventuality of litigation they can depose and support the process of law as it is expected that a younger witness might outlive the testator.

5. Testator can bequeath self acquired assets in the manner he likes. In case of inherited and ancestral property, rights of the testator to bequeath are bit restricted.

6. Testator can exclude any heir from bequeath. It is desirable to give explanation in the will for the same to avoid any litigation on this point.

7. Nomination (e.g. in Bank A/c) does not make the nominee sole owner of the claim received. Nominee is bound to distribute the amount claimed to the legal heirs. If you wish to make him/her (nominee) the sole owner of the claim which might be received in future, bequeath such asset in the will to the nominee. 

 8. Bequeath can be conditional, provided such condition is not illegal/ immoral/ impossible to comply with by the beneficiary.

9. Will, Registered or otherwise, can be amended / altered/ cancelled at any time by the testator during his/her life time. For this purpose, a document called “codicil” is prepared, dated, signed and witnessed by two witnesses.

10. If the Will is registered and afterwards another will is prepared, the later will would prevail, even though it is not registered.

11. Prepare the will carefully with clear wording so that no chance is left for any ambiguity or contradiction. 

12. Though not stipulated by law, it is desirable to name, two Executors with an explicit direction that if the executor named first fails to act, the latter executor will execute the will (which involves obtaining probate and distribution of the estate of the testator). Professional organization/bank undertaking the business of execution of will can also be named as executor. 

If the Executor is not named in the will, Court will appoint one. It is desirable that the Executors are neutral and educated persons, preferably younger than the testator. It is desirable to obtain verbal consent of the executors so that little chance is left for disowning their responsibility when the occasion arises. Testator can provide in the will for remuneration to the executor for the time and energy to be spent by him/her. If no provision is made, no remuneration can be claimed. However, an executor is free to opt out in any case.

12. No one (including the witness) except the Testator is required to know the content of the will.

13. Keep the will in a sealed cover and inform a trustworthy person where it is kept. It can be deposited with a bank with a nomination facility.

14. Care must be taken to bequeath all the assets to obviate any litigation for any left out asset not bequeathed. This may happen in the case of:
- an asset might have been left out inadvertently through oversight
- an asset may come to notice/traced after testator’s death
- an asset may devolve or accrue after the date of the will or death of the testator.
In order to obviate such an eventuality, it is desirable to add “residuary clause”- a clause to the effect that “my remaining assets, if any, are left to (name of the beneficiary) or a clause to that effect.

15. No Power of Attorney can be appointed to make a will on behalf of the person donating the power.

Disclaimer: The write up involves ticklish legal issues. This public forum aims to create general awareness amongst the readers and is not a substitute of the professional advice. The writer nor his employer accepts any liability for any person’s act or omission on the basis of what has been stated hereinabove.
=0=0=

Thursday, January 11, 2018

Makar Sankranti - The Festival of Kites




Makar Sankaranti is very pleasurable festival of India. All aged people celebrate the festival with joy and happiness. 

Makar Sankranti is one of the most auspicious days for the Hindus, and is celebrated in almost all parts of the country in innumerable cultural forms, with great devotion, fervor & gaiety. The festival of Makar Sankrant traditionally coincides with the beginning of the Sun's northward journey (the Uttarayan).

Significance:- 

Makar Sankranti is one of the few ancient Hindu festivals that have been observed according to solar(Sun) cycles. Being a festival that celebrates the solar(Sun) cycle, it almost always falls on the same Gregorian date every year on January 14th, because of the complexity of earth-sun relative movement. The festival is dedicated to the Hindu sun god, Surya. 

“Wish you all a happy Makar Sankranti in Advance”
“Be safe and keep safe others”
Enjoy The Festival

Wednesday, January 10, 2018

How to get along with the Boss



You must have read or at least heard about the subject topic, may be titled somewhat differently like “How to manage the boss”, “How to deal with the boss”, etc - with or without an adjective prefixed to boss. Generally, the word boss conjures up a scenario where there is a supervisor and the subordinates in commercial field, though similar type of relationship might exist in other situations also. The present write up discusses the boss – subordinate relationship in commercial field. 

Going by the popular perception, a boss is a person who superintends a group of persons for getting the work done. Bosses themselves would be happy with this perception as it glorifies a boss as a person with authority but a good boss has a wider role - mentoring, problem solving, mustering and allocating resources, planning, monitoring, rewarding, disciplining and punishing. 

Though the word boss has old masculine flavour and perceived as such in general even today, females are catching up fast and gender gap for the role is narrowing. An entrepreneur mobilizes together the factors of production (Land, Labour, Capital, Enterprise or Entrepreneur). A boss manages one or more of these factors on behalf of the entrepreneur. While on the subject of boss, any one would be intuitively reminded of a leader. Though they both are pivot of group dynamics, they have different characteristics. 

Why is cordial relation between the boss and the subordinates important?

Modern economy has brought us many comforts and also a good amount of workplace mental tension.  If Top Ten factors creating the mental tension in workers’ life are listed in order of the gravity, the factor of tense relation with the boss would figure in Top Three. The issue merits the top attention of the stakeholders as, apart from the health issues, it is the worst villain affecting the productivity and job satisfaction. In extreme cases, the subordinate becomes averse to working under the boss and the boss fretting for firing the subordinate. Such a situation does not auger well for any, including the organisation. 

Why does the relation become tense?

There are two sides of the coin. Let us start with one.
As the boss is soldiering higher responsibility which he alone cannot discharge, he has to appreciate the importance of the contribution being made by the subordinates and credit them for his success. He has to appreciate the fact that the subordinates are coming from different type of culture and family background than those of his own. 

The caliber gap between the boss and subordinates is inherent due to various reasons. He should strongly believe, though it may not be a ground reality, that each employee is a dedicated to the organisation and send positive signals about the employees while keeping eyes on laggards. He has to accept their deficiencies with bit magnanimity and mentor them to raise up their level. He has to provide conducive atmosphere where the subordinates can deliver their best. 

However, even after applying the lessons he/she has garnered from management books, experience and Case Studies; when he finds that relation with subordinate/s is becoming lukewarm, he should introspect and ponder over the factor that spoiled relation, before the lukewarm relations degenerate into grudges and prejudices. 

The factor/s can be one or more of the following:
  • Insulting the subordinates in presence of the colleagues/peers
  • Withholding the employee benefits just to prove his/her importance
  •  Ferreting the fault of a particular employee and amplifying the same even when the fault is   negligible and such fault of other employees is ignored, even though noticed.
  • Pocketing himself the credit of a good work done by others when he has no contribution in the achievement or passing on the credit to an employee who has not contributed in the achievement.
  • Nurturing the groupism
  • Bullying the subordinates
  • Ignoring the genuine demand from subordinates for resources for achieving the goal
  • Lopsided distribution of workload
  • Fixation of targets/Key Responsibility Areas in a sloppy manner.

Now another side of the coin:

The objectives of keeping the post of the boss by the top management are well understood by the subordinates but their perception about the role and the actions of the boss is hazy. If the drivers appreciate the role of the Traffic Police, it would not be an eyesore any more. The subordinates would do well if they appreciate the fact that the top management must have good reasons for posting a boss and that too a particular person as boss. As he is sitting at higher plank, he must have wider and better perspective of the situation. Each of the subordinates is an extended hand of the boss and sum total of their performance is the performance of the boss. And hence performance of the subordinates is the foundation of healthy relation with the boss. 

When a subordinate finds that his/ her relation with the boss is under stress, he/she should examine the following probable reasons which led to the impasse and dwell upon the corrective measures:

  •          Poor performance
  •          Dishonesty / unethical practices jeopardizing the interest of the organisation
  •          Overt or covert disobedience and rude behavior to the boss
  •          Poisoning the ears of the top management to tarnish the image of the boss
  •          Not adapting to the working style of the boss
  •          Priorities not aligned with those of the boss
  •          Misrepresentation / Lack of communication
  •          Taking the boss for granted / Over acting / bypassing the boss
  •          Reluctance to take more responsibility
  •          Negativity dampening the team spirit
  •          Insincere praise of the boss with ulterior motive
  •          Argumentative nature wasting the time of the boss
  •          Peering through the keyhole in the personal life of the boss

Restoring the healthy relationship between the boss and the subordinates:

If the both the sides are not stubborn on the issue and deliberately do not wish to pull on with the tense relationship, the situation will thaw and relation will become normal with the passing of time, as happens in social set up. Each side will find out some face saving device and implicit gestures to come closer so that tension can be defused. This process takes bit longer time.  Rather than waiting for this to happen, it is imperative to initiate the process by both sides in the interest of both the sides and also the organisation. 

The best way is to meet and speak up and frankly discuss the issue with sincere intention to normalize the relationship. Either side can initiate, putting the ego issues aside. Restoring the normal relation between the boss and subordinate/s is a ticklish task – easier said than done. 

What boss should do:

  • Not only monitoring but also mentoring the subordinates
  •  Facilitate a conducive work environment
  •  Communicate with subordinates
  •  When warranted, punish a delinquent subordinate without hurting his/her self-respect
  •   Release dues / perks/ benefits gracefully
  •   Give / share the credit of a good work done
  •   Set the targets/ goals / Key Responsibility Areas after due process and review the same  objectively
  •  Differentiate false flatters from performers and appreciate  the performers

What subordinate/s should do: 

  • Perform. Performance is the key to be in the good books of the boss. Walk extra mile if you want to stand out from the crowd.
  • Get well prepared with the fundas, facts  and records before approaching the
  • boss. Bosses are time-poor.
  • Behave courteously with the boss. Courtesy begets courtesy.  
  • Win the trust of the boss.
  • When required to confront the boss due to divergent views on an issue, look at the issue with his/her perspective. Submit your views politely and with all humility. Do not harp on your views, just hint at it. Dissenting voice before the boss is like a red rag to a bull. Not just listen to the boss but also read his/her face. Remember, “Boss is always right” and even if he is wrong, he is boss.
  • Adapt to the working style of the boss. Not following his/her style inspite of repeated instructions is a “reasonable” trigger for blasting.
  • Go to the boss not only with the problems but also with the probable solutions.
  • Keep the boss informed.
  • If you feel biased/offended/harassed/singled out, seek his/her appointment and speak up to him/her without making noise.   
  • Do not criticize the boss. That is a prerogative of his boss. Nevertheless, you venture into this, your words will certainly reach to your boss through grapevine. Bosses have powerful antenna.

Wish both the sides all the success in their endeavour for healthy relations, ever after.

=0=0=