Will-Facts, Myths & Mistakes

 

                                   Will- Facts, Myths, Mistakes

Will is an expression of Intent or wish of a person.  It is defined as “A legal declaration of the intention of the testator with respect to his property which he desires to be carried out after his death”. Wish can be expressed orally or in writing, whether registered or not. The document can be private or public. A letter written or a spoken word is a private document. To make it public document, it has to be brought to the notice of the world either by publishing or speaking in public or announcing in public or it should be a registered document so that it becomes a public document.

A document ha two important aspect   (i) legal and (ii) execution. A document may be legally right that is it conforms to all the rules laid down at that time it was spoken or written but it is on executable meaning it cannot be executed. It is possible that the document is executable but does not conform to the laws of the land. A will, therefore, has to conform to both these aspects that it is not only legally correct but is also executable.

A will is written while the person is alive and is in full senses, stable mind. It can be operational during his life time and such a will is called a living will or advance declaration and is operational as long as the person is alive and becomes null and void once he is dead. The other type of will is the one with which we are normally familiar and this is also written during his life time but becomes operational only after his death and deals with how his assets are to be divided or given out to his heirs or to any other person including a Hindu deity, a company, a corporation, a trust or to any individual.

A spoken will is a legally correct will but it may fail in the execution as it will require to be proved in the court along with witnesses and evidence that it is so. Therefore, it is of little value in present day scenario. You may write your wish on a piece of paper and also sign it. This is again a legal will but will have to be proved in a court of law of its validity with witnesses and evidence. A will can be written and attested by two witnesses, who can testify that the will was signed by the person in their presence. This is a proper legal will and is referred to as an unregistered will. If it is registered with the office of registrar in the presence of two witnesses after following the due process then it is registered document and referred to as registered will. The original will along with the details and signature of the authority is returned back to the person and a copy is kept in the record along with the computerized version. A certified copy of this document can be obtained after paying the fee. A court will take notice of any such document or its certified copy and this document requires no further proof.

As per section 5 of the Indian Succession Act 1925, any person who is 21 years or more of age, a Hindu, Sikh, Buddhist, Jain, Parsi or a Christian can make a will provided he not a lunatic, minor, insolvent or a person who has been debarred from making the will can make a will. This type of will is called an unprivileged will. A person who is serving in Armed Forces can make a will if he is above 18 years of age and this will is called a privileged will and functions as long as the person is serving in the Armed Forces under war like conditions. This type of will also does not require attestation by two witnesses.  A will is governed by section 63 Of the Indian Succession Act 1925. A legatee can be individual, corporate, trust, Hindu Deity but a minor can be a legate only if a guardian is appointed. A minimum of two witnesses are required to attest the will and the witnesses should be of sound mind, major and should not be a beneficiary in the will. An executor can be named in the will whose job will be to execute the will. This executor can be anybody even a beneficiary in the will.

A will can be of various types. It can be a simple, complicated, and joint or a conditional will. A simple will is the one where a person writes that after his death all his assets are to be given to his wife or to a single other person. This will has a problem that in case of death of wife or other person, the will cannot be executed as the person is no longer alive and a fresh will needs to be written again or the assets will be divided as per the personal law applicable to him.. In a complicated will the person divides his assets in a certain proportion to two or more persons, like, between his wife and children. This has the advantage over a simple will that in case of death of one person the assets will be divided among the surviving members and may not become non executable at all. A joint will is one where husband and wife jointly write their will and assign how the assets are to be divided among other and in what proportion. The only disadvantage is that if the will is to be changed or a codicil to be written then it will again require both the signatures. A conditional will scores above all this by putting certain conditions and listing out how the assets are to be divided in case this condition exists. This will has the advantage that in care of death of spouse, the will does not require any change or amendment as it can still be executable under the prevailing condition while the other condition becomes redundant.

It is also important that both husband and wife should execute a separate will. Both the will can be mirror image of each other. However in case of wife her streedhan and the property of which is sole owner or the property which she receives from her parent’s side is to be specifically mentioned. As the first right on these assets will be of the children and not of husband.

A person cannot give his ancestral property in the form of a will but he can make a will only of his self acquired property. A will does not involve any transfer, nor affect any transfer inter-vivos, but it is an expression of intent after his death. A will regulates the succession one provides for succession as declared by the testator.

If there is no will or the will has become null and void due to any reason or declared so by the court then a person is presumed to have died intestate and his property is divided as per the personal inheritance laws or the Indian inheritance act. If there is an unregistered will and the witnesses are also no longer alive then this unregistered will is null and void. One of the witnesses has to be alive and give evidence/affidavit that he had seen the person signing the will and have attested to this fact and then only the court will presume that the will has been proved and will grant a letter of administration or probate for the will. For a registered will this formality does not exist as it s a public document and the court will take cognizance of it without any proof.

The process of registration of the will is exactly similar to the registration of flat/house/ land or any other document in the office of registrar. Get the will type on a non judicial stamp paper of Rs.100/= and paste your photograph on the first page in two copies (one original and the other photocopy), get it attested and along with two witnesses who are not beneficiary in the will go to the registrar/deputy registrar/ sub registrar office and after payment of the fee the signed original copy will be given to you as registered will. One can also write it on a plain A4 size paper and get it registered as there is no requirement that it should be on non judicial stamp paper.

A will can be changed any number of times during the life time by writing a fresh will and destroying the old one. However, a registered will can be revoked only by another registered will. Minor amendments to the will can be done by writing a codicil and getting the same registered.

A will can be signed by any other person in the presence of the person making the will under his instructions and an annotation to this effect has to be made in the document. Similarly the witnesses before signing will have to state that the same before attesting the document. Even a deaf and dumb person can make a will.

In case you have an unregistered will and also immovable property then you have the following options:-

(1)    Approach the courts to get a letter of administration / probate for the legal unregistered will or registered will. But if the witnesses are no longer alive then you will have to apply for succession certificate in case of unregistered will, as the unregistered will be of no use to you.

(2)    Get the will registered through the registrar. It is a time consuming process and after due verification from the witnesses the will be declared registered by the registrar, If the witnesses are dead then succession certificate is the only answer.

(3)    Get a family agreement with all the legal heirs made and after due attestation get it registered or present it t the court to get the succession certificate as per the agreement..

If there is no will or the will has become null and void or the unregistered will has been destroyed or lost, then the only option you have is to go for a succession certificate from the appropriate local civil court. However, in this case stamp duty on the total value of all assets owned by the person becomes payable at the time of submission of the petition for succession certificate. This can vary from state to state and can be from 2% to 8% in some states. However, it is possible to make a family agreement in which all legal heirs sign and agree to the part ion of the property as per  the agreement and the court will ratify the agreement and issue a letter under its own authority.

 

 

 

Noise Polluion

                                             Noise Pollution

We are constantly bombarded day and night by the noise on the road, factories, etc. Constant honking on roads some even using pressure horns while other probably have on hand always on the horn button, noise for vehicle engines not to mention the motorcycles with silencers removed to announce their arrival. If this was not enough then we have the loud speakers from religious places, in rallies, marches and even the jagratas,  DJ’s in marriages, which keep you awake through night for a couple of days. All this leaves me to wonder whether god is listening or he has also gone deaf. This becomes unbearable when these things happen at the time of school, college or other examinations. All this is compounded by the industrial noise created by constant running of machines. Silent zones and no parking are there to be broken only.

In general a human being can tolerate noise level up to 85 db (Decibels) only and anything beyond it can affect productivity and quality of life. A decibel level of common sound above 80 is considered bad while above 100 to 120 are termed uncomfortable. Regular exposure to noise can come out in the form of people being irritable, nervous and face difficulty in taking decisions. A constant exposure of common sound above100 db may damage your ears and you may face difficulty in hearing.

There are 70 noise monitoring stations at present under National Ambient Noise Monitoring network in seven states. The ambient noise level in these states showed that about 90% of states found noise level beyond acceptable limit in both day and night.  This is a matter of serious concerns.

Street level noise is mainly associated with vehicular traffic and is hard to ignore and escape. The mean street level as per one study is about 74db with a range from 55 to 95 db and varies with the density of traffic.

Decibel (Db) is a relative unit of measurement corresponding to one tenth of Bel (b). It is used to express the ratio of the value to a power or field quantity to another on a logarithmic scale. The logarithmic quantity being called the power level or field level. Near silence is 0 db but a sound measured at 10 db is actually 10 times louder and 20 db is 100 times louder than silence, a 30 db is 100 times louder than 10 db. The noise in an average bedroom is about 20 db, a firearm averages between 140 to 165 db, normal conversation is about 60 db and a rock concert averages 120db.

The Government having realized the importance of noise pollution enacted a new set of rules especially dealing with noise pollution entitled Noise Pollution (Prevention and Control) rules 2000 which deals especially with noise pollution in addition to the Air (Pollution Prevention, Control & pollution)  Act 1981. These rules specify the limits of noise pollution in different areas like industrial, commercial and residential and specify the limit in db for each area for day and night separately and the punishment for violation.

In addition silent zones are specified by each state which includes all areas that lie with 100 meters of the premises of schools, colleges, hospitals and courts. The permissible limit in silence zone is 50 db at day and 40 db at night with restriction on use of horn. The limits for domestic appliances lice AC, mixer, air cooler and refrigerator is also specified. Daytime means 0660 hrs to 2200 hrs and night time means2200 hrs to 0600 hrs. Loud speakers and public address systems can be used after permission and not between 2200 hrs to 0600 hrs. In residential areas the limit is 55 db at daytime and 55 db at night time whereas for commercial areas it is 65 and 55 db respectively .Strict fines ranging from Rs.10,000/= to one lac with confiscation of instrument is specified which can be levied on the offender.

The district magistrate is the local authority to monitor, regulate and take action against the offenders which he fulfills with the help of police. A complaint to 112/100 or to the nearby police station is sufficient for the action.

 

 

 

 

Public Nuisance

 

                                                              Public Nuisance

 

The word public nuisance consists of two different word, viz, public and nuisance and both have to present together to constitute this act or omission. Public Nuisance is an act or omission that interferes or obstructs the interest or comfort of public at large. 

 

Public Nuisance is defined in section 268 of The Indian Penal Code 1860 which states that:-

 

The use of the word annoyance gives this definition a very wide meaning and includes a host of all those actions which may cause annoyance to the public at large. If it only hurts one person then still it is nuisance but come under the preview of private nuisance. Annoyance can be caused and it implies a perception of the victim and can include even , playing loud music, obstructing movement, blocking road or passages, activities which may harm others, businesses which affect the safety of public, life threatening trees or even animals, dangerous buildings, storage of hazardous chemicals or explosives and so on.

 

The object of this section basically is to safeguard the public health, safety by causing acts punishable which affects the health, well being, safety or threatens the life of people. Even if the act causes annoyance to the people then also it will amount to nuisance.

A public Nuisance is a criminal wrong, it is an act or omission that obstructs damages or causes inconvenience to the right of the community. The term public is defined in section 12 of IPC .The word public includes any class of the public or any community. Thus a class or community residing in a particular locality may come within the term public.

 

A common nuisance is not excused on the ground that it causes some convenience or advantage to a charge of public nuisance that the act in question was done. This simply means that there is no defence to a charge of committing a public nuisance that the act in question was done to prevent or mitigate some harm to the other person.

 

A Nuisance can be public or private. A private nuisance is the nuisance done to one person only but when the community at large is involved then it is termed as public nuisance. Nuisance may be permanent, continuing, recurring or even temporary nuisance. 

 

Public nuisance is not a civil wrong but a crime and it cannot be tried by a person unless the person can prove special damages but by the state only. The public nuisance comprises of all the small crimes which can cause hurt or affect health or threaten life and it is not a wrong against a specific person but is considered as a wrong against the society.

 

Section 133 Cr P C gives the power to the District Magistrate to issue conditional order after receiving the report from police office or any information and on taking such evidence as he thinks fit and in case it if found that the act or omission will harm the health, safety and well being of the public at large. A large number of activities are covered under the section including old and dangerous trees, animal, old buildings, obstruction, dangerous activities, storage and manufacture of explosives or dangerous chemicals, industries affecting health and well being.

 

No order duly made by a Magistrate under this section shall be called in question in any civil court. This section is designed to afford a rough and ready procedure for removing public nuisances. In fact, the section has been formulated to deal with emergent situations. In order to invoke Section 133(l)(a), the nuisance has got to be a public nuisance and then only it can be stated to affect the members of the public and hence can be removed from the public place.

 

The object and public purpose behind Section 133 are to prevent public nuisance that if the magistrate fails to take immediate recourse to Section 133, irreparable damage would be done to the public. However, under Section 133 no action seems possible if the nuisance has been in existence for a long period. In that case, the only remedy open to the aggrieved party is to move the civil court.

Citizenship Dilemma

 

 The other day somebody asked me whether I am a citizen of India. My answer was yes but I kept thinking that  how am I going to prove that I am citizen on India as I do not have a certificate of citizenship of India but I do have a variety of documents which give my date and place of birth in India and in some my nationality is listed as Indian.

I have a valid passport, Aadhar card, PAN card, voter I -card, retired Air Force I- card, my Ex-servicemen I-card, revenue receipts and land/house documents and a pension account in a PSU bank but these are not proof of my citizen ship. Various Supreme Court judgements and High Court judgement have ruled that passport, voter I card, PAN Card, Aadhar card, revenue receipts and even a bank account including the retired Air Force identity card are not proof of my citizenship. Well I could not think of anything beyond them and here lies my dilemma.

Looking at article 5 of the Constitution of India which says that a person is citizen of India if at the time of commencement of Constitution had his domicile in India and was born in the territory of  India  or  at the time of commencement of Constitution of India had his domicile in the territory of India  and  either of his parents were born in the territory of India or at the commencement of constitution f India the person had his domicile  within the territory of India for not less than 5 years immediately preceding  the commencement, , shall be citizen of India. No citizenship certificate is issued to a person born in India.

The Citizenship Act 1955 in section 3 lays down condition for claiming citizen by birth after the commencement of Constitution. It says that every person born in India  on or after 26 Jan 1950, that is the commencement of Constitution,  but before 1 Jul 1987 shall be citizen of India, if born after 1 Jul1987 but before the commencement of citizenship  (amendment )act 2003 and either of whose parents is a citizen of India at the time of his birth , if born after the commencement of citizenship(Amendment) act 2003 then either  both of his parents are citizen of India  or one of the parent is citizen of India and the other is not an illegal immigrant at the time of birth, shall be citizen of India.

It looks simple but the proof of being born in India as accepted is the birth certificate issued by the government under Registration of Birth and death Act 1969 or a birth certificate issued by the municipal authorities. Now most of senior citizen born before 1 Jul 87 may not have such a birth certificate and this will create a problem. Getting birth certificate for parents will be more troublesome as most of births used to take place at home or not registered. Even I cannot produce my birth certificate or of my parents issued by the state or municipal authorities. Most of us have used the date of birth as given in high school certificates or equivalent examination and this is what has been used in all other document including entry to Air Force or passport.

Even now as per official records in 2015-2016 only about 63% of children under the age of 5 had their birth registered. This figure now has improved considerably but a large number of births in rural area which do not take place in a hospital, health center or by Asha workers do not get reported. Of course in later stage some date of birth is entered in some document but still the birth remains unregistered thus complicating the citizenship dilemma.

In USA and most of the countries the valid passport is accepted as a proof of citizenship and in other countries India passport is accepted as a proof of Indian citizenship except in India itself.

Does it mean that I cannot prove to the satisfaction of court or authorities that I am a citizen of India. It would appear so. That is the reason India need to have a certificate or a document issued to Indian citizen that they are citizen of this country.  National Register of Citizenship could be a step in this direction but the problem will become acute if other documents where date of birth is mentioned is not accepted and only birth certificate is insisted upon.

Directed Organ Donation

Can One Will His Organs or Give a Directed Organ Donation Instruction?

 

The Transplantation of Human Organ Act (THOA )1994 is ambiguous on this issue except to put a ban of trade of human organs and coercion . But the question is can a person say in his advance declaration or in its absence the legal heir put a condition that one or more organs are to be given to a particular person or exclude some category of persons from benefiting from this transplantation? There are a variety of opinions and people argue that once you give up voluntarily then the organs are state property by virtue of it being the property of organ sharing organization or National Organ and Tissue Transplant Organization (NOTTO) in India becomes the deciding authority to decide who should get the organs based on four guiding principles.

 

A person can give a directed organ donation to a close relative while he is alive and it is permitted then it should also apply to a person who is brain dead and since he cannot make a decision or convey it hence his legal heirs have the right to decide. A few cases of one of the kidney donation, a portion of liver or blood/plasma/platelets donation are in public domain.

A person can make a will of his self acquired property then it applies to reasoning that he can decide as to whom to give or not to give his organs and his wish should be honored. Of course in this case it will be in the form of advance declaration. Moreover as long as he is alive it is his organs and after that whether he is brain dead or dead the legal heirs are the custodian of the body and hence they have a right to decide whether there is any directed organ donation or not and state should not have any say in this matter and should honor their wishes.

 

USA in 2009 has adopted this practice of directed organ donation and UK in 2010. But in India the issue is not very clear except in the state of Gujarat and Tamilnadu where directed organ donation is permitted.

 

What is required, therefore, is a provision in the THO Act permitting this directed organ donation, of course with some checks and conditions so that trade as well as profiting from this organ donation is avoided.

 

Problems and Solutions

 

                                                   Problem And Solution

Somebody once said. “It is not the problem to say that this is the problem but it is the solution to the problem and that is the main problem”. 

What is more relevant, the problem or its solution? Well they are the same side of a coin and separating one from another is not possible. But what is more important is the proper definition of the problem one faces and this is area where most of us fail. We tend to treat symptoms as problem and hence try to do a fire fighting exercise in order to overcome it. We would prefer to douse the fire rather than try to find out as to what caused the fire and address the issue. In my opinion it would be prudent to prevent the occurrence of fire after dousing the fire and to ensure that we are prepared and prevent the occurrence of fire by adequate measures. Toyota does it in a very simple way, whenever they encounter an issue or problem they try to get to the basic issue by asking “WHY” at least five times or till they do not get any further answer to why. This why is a powerful tool to get to the basic problem or issue? This proper definition of the problem is the basis of all problem solving.  Once a proper identification of the issue is done then one can try to solve the issue. All problems are not solvable and it is possible that one may encounter a problem for the first time or a problem for which no solution at present exists and then it becomes necessary to either develop a totally new solution or if it still remains unsolvable then a proper management of the issue is the only solution.

To solve a problem it would be prudent to categorize the problem and then try the thinking process most appropriate to address it. A problem can be divided into four different categories and each category demands a different approach to solve it.

Category 1-These are the problems which can be solved at the individual level by the person himself by either arranging the information already available with him or find analogy from the past or gathering information on his own to arrive at a solution. Such problems are best solved by logical thinking which we routinely use. These are the routine decisions which every individual makes a number of times in his daily life. To take route 1 or route two, use own vehicle or use public transport, where to shop, etc.

Category 2- These are the problems for which no solution exists within the knowledge of the individual or any other way or the knowledge is not sufficient and he is forced to seek an advice or opinion from others or experts in order to get a solution to the problem. These are the problems which one encounters less frequently and once in a while only. These are best solved by more information gathering and using logical thinking or adhering to the advice of experts. The example could be,illness, buying a house or make a house, go or not to go on foreign holiday and where, etc.

Category 3- These are the problems for which no solution exists with the individual or from experts and it is one which one has encountered for the first time. These problems/issues cannot be solved by logical thinking as available in the first two categories but a different thinking approach is to be used. One refer to such approaches as out of box thinking or more commonly known as creative problem solving  using the techniques of creative thinking. This simply means that one has to create a solution to the problem/issue.

Category 4- These are the problems for which with the present knowledge no solution can be found or can be created and they can be at best labelled as unsolvable at present but it does not mean that in future they cannot be solved. These are the problem that needs to be managed properly by using the techniques of positive thinking. Examples of such issues could be incurable diseases, menopause, etc.