Most of my assets are in the form of financial assets. I also own a house each in Delhi and Chandigarh. I had bought both on my own. I want my wife to have full control of all of my assets after I die. I would like to decide through a Will as to how the assets remaining after my wife’s time, are to be distributed. I have two daughters who are married.
While answering your query, I have presumed that you are not governed by Mohammedan law. From your query, we understand that while it is your intention that your wife should have full control of your assets after your death, you would also like to decide how the assets (bequeathed by you to your wife) remaining after your wife’s death will be distributed.
Legally, your wife cannot be said to be in ‘full control’ of your assets, if you would also like to decide how the assets remaining after her death are to be divided. If your wife has full control over the assets, then she should be in a position to dispose the assets as she deems fit and also to bequeath what is remaining following her death to whoever she deems fit.
But if it’s your intention that your wife should be entitled to enjoy the use of your properties and income during her lifetime, and thereafter, the properties are to vest with your daughters, then through your Will you can grant a life interest in favour of your wife and you can further direct that the properties remaining on the death of your wife will be vested in such persons and in such proportion as you specify in your Will. Accordingly, you need to first decide whether the properties will vest fully with your wife on your death and your wife will have the full power of disposition over these or whether your wife will have a life interest in the properties and on her death the properties will belong to the ultimate beneficiaries named by you.
You can also decide differently for each of the properties involved so long as your Will clearly specifies your intention. You may set out in your Will that it is your desire or wish that after your wife’s demise the assets that have devolved upon her through your Will, should devolve upon your two daughters. This would give your wife unfettered control of all the assets and will enable your wife to transfer the assets to any person during her lifetime.
But since this is only your desire and since you have bequeathed the assets to your wife absolutely, your wish or desire would not be binding on her and she would be free to bequeath the assets by Will or otherwise transfer them to any person as she may desire. In order to ensure that the assets then devolve upon your daughters upon your wife’s demise, your wife would also have to execute a Will in favour of your two daughters. In the event that she does not make a Will, the assets would devolve upon her heirs as per the personal laws applicable to her which govern intestate succession.
While drawing up a Will, it is not necessary that any technical words be used but the wording should be such that the intentions of the testator (i.e., the person making the Will) should be clear. It is imperative, however, that the Will be executed in the following manner:
(i)The testator must sign the Will and the signature should be so placed that it appears that it was intended to give effect to the writing as a Will;
(ii)The Will should be signed by the testator in the presence of two witnesses (other than the beneficiaries or their spouse under a Will), who must attest (i.e., sign) the Will under the direction of the testator, after seeing the testator signing or affixing his mark to the Will or after receiving personal acknowledgment from the testator of his signature.
We also recommend that in respect of all your other assets (banks accounts, fixed deposits, housing societies, among others), you make appropriate nominations wherever possible which are in line with the intended legatees of the concerned assets. While a nomination will not confer an absolute right of ownership in respect of the relevant asset upon the nominee (since a nominee merely holds the asset as a trustee and is legally bound to transfer it to the legal heirs), the alignment of the nominations and the intended legatees will facilitate a smooth logistical execution of the estate.
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