The purpose of making a will is to direct how the property of the deceased is to be distributed upon his or her death. There are certain formalities that need to be complied with. The will must be in writing and there must be two witnesses to its execution who must be present at the same time.
A person who is a beneficiary under a will ought not to be a witness. It is not that this will render the will invalid. Rather, the witness who is a beneficiary will lose his entitlement to inheritance under the will.
Of course, this discussion is in the context of a non-Muslim, though the considerations that need to be taken into account in making a will would be equally applicable in the case of Muslims.
Irrespective of who prepares the will, various aspects which lead to different consequences need to be considered.
Nor should a will be made by just copying someone else’s will or taking a template and changing the name of the testator, the name of the beneficiaries and description of the assets, whether in money or property.
The person preparing the will ought to find out from the testator whether he wants to give away his property in certain proportions, or whether he is bothered by certain possible contingencies.
The situation changes when the testator has serious concerns about providing for different members of his family. In this connection, there is a need to probe further in order to be able to give proper advice and guidance.
Sometimes the person who comes forward to make a will may think that the person who is drafting the will, will advise him. On the other hand, the person drafting the will may think the testator knows what he wants. As a result, a simple straightforward document may be prepared and the testator goes back believing that all is well.
The person preparing the will must enquire about the testator’s family circumstances in some detail. He must ask about the testator’s intentions and whether there are any concerns as to what may happen after his demise.
It is not a question of intruding into his privacy. Such inquiries are necessary in order to address problems which may arise in the future. In fact, knowledge of problems which have arisen in the past are matters that ought to be kept in mind and brought to the attention of the testator.
These eventualities and possibilities must be discussed and the testator should weigh the alternatives and consequences, and consider his options.
A situation could arise in which a person makes a will giving all his property to his only son whom he is very proud of. The son gets married and he in turn wills all his property to his wife.
On paper this looks fine. However, three months later the father dies, leaving the inheritance to his son. The son may have had the intention of looking after his mother but four months after his father’s death, he is killed in an accident.
At this point in time, based on the provisions of the will – and unless certain exceptions apply – the son’s wife may walk away with all the property and take the view that she no longer has any obligations or ties with the family to which her husband belonged.
- Source from The Star, 28 June 2011 by Bhag Singh.
