Employee Relations

Jun 05, 2022 16 min read

Where there is a ‘‘WILL’’…..It shows a way

Ms Gunjan Jain has nearly a decade of experience of working in Human Resource in various facets of HR including compensation management, policy formulation, presidential directives, industrial Relations, HRIS, HR audit etc.
Mr. Awadhesh Kumar Mishra holds a Post Graduate Diploma degree in Personnel Management & Industrial Relations (PM&IR) from XISS, Ranchi. He has a versatile career of 20 years in Human Resource with multi-domain exposure that includes Policy formulation, HR Operations, IR & Disciplinary matters, Contract Labour regulation etc.

Probably the mankind was never more a believer of these lines of 1960’s by the author Late Nathuram Shashtri  before the COVID-19 pandemic struck the mankind in most traumatic way. Lives were blown away in matter of hours and days in the most unpredictable and sudden ways leaving behind bereaved family with orphaned children and aged parents.

In this gloomy backdrop, least, someone wishes is to have a dispute among one’s heirs regarding the properties of the person after his/her demise.

The above can be averted by making an instrument known as a ‘‘Will’’ during the lifetime of a person. Keep reading to get an idea about ‘Will’, probate and all allied matters. Before proceeding further let’s get familiarised with some important terms in the context:

WHAT IS A ‘WILL’?

WILL’ is an instrument by which a person makes a disposition of his property to take effect after his death and which is revocable during his life. The operational and considerable ‘Will’ is the last ‘Will’ signed by the testator before his death. In simpler terms, a last ‘Will’ is a legal document that communicates a person’s final wishes pertaining to possessions and dependents. It is made as per the provisions of Section 2(h) of Indian Succession Act, 1925

  1. IMPORTANT DEFINITIONS

  2. TESTATOR: a person making a ‘Will’.

  3. 'TESTAMENTARY' SUCCESSION: Distribution taking place after death of the testator as per his ‘Will’.

  4. CODICIL: a document which modifies or alters the provisions of the original ‘Will’ and forms part of it.

  5. ESTATE: the property of the testator remaining or left after his death.

  6. LETTER OF ADMINISTRATION: a certificate granted by the Court appointing an administrator to administer the estate of the deceased in accordance with the ‘Will’.

  7. LEGATEE: a person, to whom the property is given under the ‘Will’.

  8. BEQUEST / LEGACY: the property or benefits under the ‘Will’.

  9. DIED INTESTATE: a person who has died without making a ‘Will’.

  10. EXECUTOR: a person/institution who is the legal representative, named in a ‘Will’ or implied as such, to carry out the process of the distribution of the assets of the testator.

  11. PROBATE: a copy of the ‘Will’ that is certified by the seal of a court of competent jurisdiction. Probate can only be granted to executor of the ‘Will’ and only seven days after death of the testator. Probate cannot be granted to any person who is a minor or is of unsound mind. And it however does not confer upon him any title to the property.

IS PROBATE MANDATORY?

Though not mandatory, except if the ‘Will’ is made in West Bengal, Bihar, Jharkhand, Orissa and Assam and territories subject to the ordinary original civil jurisdiction of Bombay and Madras high courts or the ‘Will’ relates to immoveable property situated within these territories.

The same has been clarified by Hon’ble Supreme Court in its landmark judgement in Civil Appeal no. 5823 of 2019 in the matter of Kanta Yadav versus Om Prakash Yadav & ors.

It is however, advisable to obtain Probate where there is a probability of the validity of the ‘Will’ being challenged on any grounds in the future.

Probate, is applicable to Hindi, Sikhs, Parsi, Jains & Buddhists only and is not required in case of Muslims as well as Indian Christians.

  1. ATTESTATION: an act of witnessing the execution of the Will. If there is no attestation, the ‘Will’ is not validly executed. A ‘Will’ must be attested by at least two witnesses.

  2. REGISTRATION of ‘Will’- ‘Will’ may be registered or unregistered though it is advisable to have a registered ‘Will’. One can get their ‘Will’ notarized.

  3. FORM OF ‘WILL’

The ‘Will’ should be in writing. An oral ‘Will’ or unsigned or unattested ‘Will’ is not valid. However, oral ‘Will’ can be made under Muslim Personal Law. There is no form or language prescribed for making a ‘Will’.

STEPS/PROCESS IN MAKING A ‘WILL’

Every testator shall execute his ‘Will’ according to the following rules:

  1. The testator shall sign or shall affix his mark to the ‘Will’, or it shall be signed by some other person in his presence and by his direction.

  2. The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a ‘Will’.

  3. The ‘Will’ shall be attested by two or more witnesses.

  4. Apart from the above provision with regards to the signing of the ‘Will’, following needs to be done:

  • Declaration at the beginning of the ‘Will’ as to whether it is the final or last ‘Will’.

  • Decision and details related to Property and documents that provides list of items and their current value (land, house, bank deposits, share certificates, investments etc.). Also, important to indicate where all necessary documents are stored.

  • It is advised that all the beneficiaries who are to inherit assets are listed.

  • An executor’s name must be mentioned who Will be responsible for dividing the assets among the beneficiaries.

LAWS REGULATING THE TESTAMENTARY POWERS

The Law of Testamentary Succession of the Hindus, Christians, Parsis, Jews and others (other than Muslims) is almost uniformly contained in the Indian Succession Act, 1925, with some modifications applicable to them respectively. e.g. Parsis are governed by the rules for Parsi intestates which are laid down under Part V Chapter III of the Act.

For Hindus (includes Sikh, Buddhist, Jain) the intestate succession and all its exceptions are codified in the Hindu Succession Act, 1956.

Indian Christians are largely governed by Indian succession Act for both testamentary succession & intestate succession. However, Goa, UTs of Daman & Diu and Puducherry are governed by other laws.

The Law of Succession of Muslims is governed by Muslim Personal Law based on teachings of Quran and there is difference in regulations for even Shia and Sunni Muslims.

ADVANTAGES OF A ‘WILL’ – TO ‘WILL’ OR NOT TO ‘WILL’

  1. Avoids property disputes between the family.

  2. A registered ‘Will’ cannot be altered or changed as it is in safe custody of the registrar.

  3. Provides indisputable financial security to the family members.

  4. Legal heirs become aware of inventory of assets which otherwise may not be the case.

  5. The ‘Will’ is a must if there are any special needs children or if any person in the family needs to be given a larger share of the inheritance.

  6. Appointing guardians of minor children in case of death of both parents secures future of such children.

SERVICE BENEFITS THROUGH ‘WILL’??

During the course of employment, various service benefits arise on the part of employer towards their employees. To discharge the liabilities towards these various statutory and non-statutory benefits, employer requires nominations to be filled by their employees which enable them to settle the dues in unfortunate eventualities like death and permanent disablement. The service benefits may be

  • arising out of employee’s services i.e., retirement gratuity, PF, amount towards leave encashment, pension, other retirement benefits etc.   Or

  • arising upon to death of the employee e.g., compassionate employment, death pension, ex-gratia on death etc.  which are contingent upon death only.

The guiding principles of law relating to service benefits vis-a-vis their testamentary disposition as laid down by the Apex Court in Jodh Singh v. Union of India, (1980) 4 SCC 306Violet Isaac v. Union of India, (1991) 1 SCC 725; & Nitu Singh v. Sheela Rani, (2016) 16 SCC 229, are as follows:

  • An employee has no power of testamentary disposition with respect to something which was not payable to him during his life-time. e.g any ex-gratia scheme.

  • If the benefit occurs only on death of deceased, while he is in service resulting in monetary benefits accrue, it wouldn’t form part of the estate of deceased & can’t be disposed by testamentary disposition. e.g. death benefit schemes.

  • If the Scheme and/or service Rules designate certain persons who are entitled to receive benefits out of the Scheme, then no other person except those designated persons can be entitled to the said benefits. e.g. family pension under EPF& MP Act, 1956.

  • If the employee makes no contribution to the benefit, he has no control over the same to dispose it by testamentary disposition.

  • All similar benefits, which forms part of the estate of employee & are receivable during his lifetime can be disposed by testamentary disposition only in line with the prevailing Rules/ Scheme etc.

EMPLOYER’S PERSPECTIVE ON ‘WILL’

  1. NOMINATION VERSUS WILL:

Nomination and ‘Will’ are two different concepts and nomination could not be given the same legal status as that of a ‘Will’. A nominee could not be considered as owner of a property. Mere nomination does not bestow beneficial ownership of assets to the nominees.

However, as long as the employer has a valid nomination and make the payment to the nominee, the employer is discharged of its liability. This is the settled position of law that the purpose of taking a nomination by an employer is to relieve itself of the obligation to pay the benefits. The purpose of nomination is only to benefit a custodian to enable him to know how and to whom he has to hand over the assets, protecting him from litigations and multiplicity of cases from different people, claiming to be successors to the interest of the employee.

However, apart from these dues the employee may have many other movable and immovable property which are not related with the nominations and are personal to the employee. Due to sudden demise of the employee such properties may be subjected to dispute among the legal heirs for its ownership where ‘WILL’ may be a solution.

CONCLUSION:

  1. Employer’s liability is restricted to obtaining valid nominations, however, making of ‘Will’ is a progressive personal step by the employee.

  2. It is a personal matter in which employer role is limited or insignificant.

  3. In any case the separation benefits are to be governed by nominations only and ‘WILL’ per-se has not a big role to play so far as the separation benefits from the Corporation are concerned.

  4. In certain cases of different faith, a ‘WILL’ can pose dilemma before the Corporation at the time of final separation as to whether to adhere to the nominations or to the ‘Will’, thus leading to delay in settlement of such cases.

  5. However, employer in it’s capacity may facilitate their employees to make the ‘Will’, to the extent possible.

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REFERENCES

[1]. The Indian Succession Act, 1925.

[2]. Singh v. Union of India, (1980) 4 SCC 306; Violet Isaac v. Union of India, (1991) 1 SCC 725; and Nitu Singh v. Sheela Rani, (2016) 16 SCC 229

[3]. Civil Appeal no. 5823 of 2019 in the matter of Kanta Yadav versus Om Prakash Yadav & ors

     

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