The Sixth R K Swamy Memorial Lecture
The Sixth R K Swamy Memorial Lecture was held on December 12, 2024, at the MMA Management Center. Hon’ble Justice P B Balaji, Judge of the Madras High Court, delivered the memorial lecture on the theme “Wills, Settlement and Nominations.” Mr. Shankar Jiwal, IPS, Director General of Police & Head of Police Force, Tamil Nadu, delivered the special address on “Creative Policing with the Aid of Technology.” Mr. Ramesh Narayan, Founder of Canco Advertising, Mumbai, shared his impressions of Sri R K Swamy.
Wills, Settlement and Nominations
Justice P B Balaji
When people and property come together, there is bound to be drama, comedy, and tragedy. Most of us want our properties to be distributed in a particular fashion after we are gone, though some might not wish to plan anything. Here’s a humorous anecdote for those who prefer not to plan.
A very rich man who lived a king-sized lifestyle called his lawyer, gave him a sealed envelope, and said, “This is my last will. I want you to read it only after my demise. Don’t reveal it to anybody while I’m alive.” The lawyer took it, and after a few months, the rich man passed away. All his relatives and friends gathered, eager to know what was in the will and if they would benefit from it. The lawyer opened the envelope and read out the will, which simply stated, “I was wise. I spent all my money.”
I’ll cover three topics: wills, settlements, and nominations. A will is a document that expresses your last wishes regarding how you want your properties—both movable and immovable—to be distributed after your lifetime. Drafting a will is simple, but it’s always better to consult a professional lawyer or have one vet it, even though there are DIY (Do It Yourself) formats. Spending a few thousand now can save lakhs of rupees in litigation later.
Unlike a settlement deed, a will is not a transfer of property. It is a document by which the title is devolved on the beneficiaries. There is no specific form for writing a will, and it need not be in legal language. In your will, you simply express your wish. It can be on a plain half sheet of paper, a page in a diary, a stamp paper, or even the cover of a book. Simplicity is the prime advantage of a will. It does not need to be registered, contrary to common misconceptions. An unregistered will has the same effect as a registered one. You can write your will within the comfort of your home.
Another advantage of a will is that you continue to keep control of your assets. The will takes effect upon your death. You can still sell the assets during your lifetime, even if you have written a will stating that your property should go to your children. Writing a will does not take away your rights.
When to Write a Will
Should you write a will? If so, when? You need to write a will if you want to alter the line of succession. For example, if a man is happily married with a son and a daughter and owns a three-bedroom flat, he may want his wife and children to take the property equally. In this case, there is no necessity for him to execute a will.
However, if the same person wants to give the property only to his daughter and not to his wife and son, he must write a will to alter the regular line of succession. Hindus are governed by Hindu law, Christians by the Indian Succession Act, and Muslims by customary law. If you have multiple properties and want to provide clarity to your family and legal heirs on which property should go to whom, a will is required.
Execution of a Will
The execution of a will is the most important part. A will requires a minimum of two witnesses to attest your signature. It can be handwritten (a holograph will) or typed and signed at the bottom. Any corrections must be initialled to avoid future complications.
The date and place of execution are very important. In the three presidency towns of Madras, Bombay, and Calcutta, wills must be probated before the High Court or the district court. If the will is executed outside these towns, probate is not necessary. However, if you write a will in Bangalore and the property bequeathed is in Chennai, you will still have to probate the will. Either the property must be within these three presidency towns, or the will itself must be executed within them.
You can create a will with a lot of clarity and spell out the reasons for choosing certain beneficiaries over others, although it is not necessary to state reasons. Some wills are very brief, consisting of just one or two sentences. For example, a man wrote a will through his advocate stating that all his property should go to his wife. However, his clever son consulted a seasoned property lawyer who argued that “all his property” referred only to the belongings in the house and not the bank balances. This resulted in years of litigation.
You can choose to bequeath only a portion of your estate in your will. For the remaining portion, you can allow it to be distributed according to the regular Law of Succession. You do not need to include all your assets in the will. For instance, if you want to give one particular property to your son, you can write a will for that property alone and let the Law of Succession take its course for the other properties.
Role of Witnesses
Two witnesses need to see you sign the will. If the will is challenged in court, the role of witnesses becomes crucial, so choose them carefully. The law requires that the will be signed by the testator in the presence of two witnesses, who must also sign in the presence of the testator.
Even if you have only one witness initially, it is still possible to write a will and add a second witness later on. The law permits this. Each witness should sign in the presence of the testator. It is not necessary for both witnesses to be present at the same time. Ideally, choose two witnesses who are known to you and not strangers.
Lawyers often encounter difficulties when wills are registered at the sub-registrar’s office. Sometimes, someone like an office boy or a drafting person may be called to sign as a witness. If the will is challenged in court, and the whereabouts of the attesting witnesses cannot be determined after a decade or so, it becomes a problem.
Can the Attesting Witness Be a Beneficiary?
Ideally, there is no bar on an attesting witness being a beneficiary, except in the case of Indian Christians. For Hindus, Buddhists, Sikhs, and Jains, there is no such restriction. However, it is better not to have the beneficiary attest the will, as it can be grounds for challenging the will, claiming that the witness played an active role in its creation.
Any person over 18 years is entitled to make a will. Even a person of unsound mind can execute a will if they are of sound mind at the time of making the will. A blind or deaf person can also execute a will. The proof of the will is most important, and the only persons who can speak about the will are the attesting witnesses, so choose them wisely.
Registration of a Will
The registration of a will is not compulsory. The advantage of registration is that if the will is lost, you can obtain a certified copy. If there is an unregistered will, assume that the second son knows he is not a beneficiary; he may tear it up or destroy it, causing the maker’s wishes to go unfulfilled. Therefore, it is important that the will is made available for the maker’s wishes to take effect.
Suppose you register the will and the next day change your mind and want to write another will. If you are already over 80 and unable to go to the sub-registrar’s office, it may create doubt or suspicion as to why the original will was registered and the second one was not. To avoid that, it is preferable to register the second will as well. These are the advantages and disadvantages of registering a will. However, courts have repeatedly stated that just because a will is registered, it is not automatically accepted. You still have to prove it in a manner known to law.
Wills for Hindus, Christians, and Muslims
For Hindus and Christians, the entire estate can be willed. However, for Muslims, as per their customary law, they cannot write a will for more than one-third of their property. You must limit your will to one-third, but you can gift the remaining property by way of Hiba, even through an oral gift or a settlement deed. Your family lawyer or a good property lawyer can advise you on writing a valid legal will.
Settlement vs. Will: Key Differences and Considerations
Settlement is a transfer of property between two living persons. When should you opt for a settlement, and when should you write a will? Suppose a person is satisfied with their life and no longer wishes to hold on to their property. They want to give it to their children during their lifetime. In such cases, they can execute a settlement deed. The title gets transferred the moment the settlement deed is executed and registered.
A will, on the other hand, provides flexibility. You can choose to cancel a will and execute another one; the last will prevails. This is why it is called the last will and testament. If there is a contradiction in the will, the later part prevails. In a settlement deed, however, the initial terms prevail over any subsequent terms.
There is a provision where you can retain some control over the asset. For instance, you can transfer the title today via a settlement deed, but stipulate that you and your spouse have the right to reside in the property or receive rental income. However, you cannot retain the right to alienate or encumber the property, as that would make it a will. This is the fundamental difference between a settlement and a will.
Conditions in a Settlement Deed
Courts have divergent views on imposing conditions in a settlement deed. Some courts state that conditions cannot be imposed and that settlements must be accepted as they are. Others, especially after the Senior Citizens Act came into force, allow conditions such as requiring children to pay the settlor a certain amount monthly. However, the Supreme Court has taken different views, and the law is not fully settled on this issue. If you want to retain control and flexibility, a settlement deed may not be necessary.
Codicils and Executors
If you need to make minor changes to a will, you can execute a document called a codicil instead of rewriting the entire will. It is always better to appoint an executor with whom you have confidence. When the will takes effect, the executor will take control of the assets and distribute them as per the will. If the will does not have an executor, it can still be administered through Letters of Administration granted by a high court or district court. Only a beneficiary can approach the court for Letters of Administration, whereas the executor can be a trusted friend, neighbour, or colleague. Executors can also be beneficiaries.
Nomination
Nomination is often misconstrued. People think the nominee becomes the owner, but this is not true. The nominee is only a trustee for the legal heirs. For example, if a brother-in-law is appointed as a nominee, but the wife and daughter are the legal heirs, the nominee does not become the owner. The court will rule that the nominee is not a Class 1 legal heir. Recently, the Lok Sabha passed the Banking Amendment Bill, allowing up to four nominees for bank accounts and insurance policies, either simultaneous or successive. However, this amendment does not change the status of nominees as trustees for the legal heirs.
Conclusion
The entire process of creating these documents is to achieve specific ends. A will is a wonderful means to specific ends, provided it is done carefully and with proper planning. Property disputes often bring out the worst in litigants, so laws can also be used as preventive measures, not just for resolving disputes. Proper advice and planning can help avoid complications. Ultimately, there must be clarity and a sense of direction in your decisions, ensuring peace for your loved ones.
Innovative Policing with the Aid of Technology and AI
Shankar Jiwal IPS
I prefer the term “innovative policing” over “creative policing.” Also, I believe that intelligence cannot be artificial, so I refer to AI as Alternate or Augmented Intelligence.
Movies tend to exaggerate, but they often draw inspiration from real ideas and enhance them. They do this for two reasons: one, to make the audience relate to some extent, and two, to evoke a sense of awe. Today, technology plays a significant role in crime detection. Previously, we worked primarily on the scene of the crime concept. Any crime has a place, which we call the scene of the crime. There is the victim and the accused or suspect. Both must be present, and the evidence we build upon is based on Locard’s Exchange Principle. There has to be something exchanged between them, whether it is scientific evidence like a footprint, fingerprint, or voiceprint.
Digital footprints have greatly aided this process. If anyone is on Google, their entire life is profiled. From the activity on their phone, we can see when they wake up and when they sleep. Not just through phone calls but also through social media presence, we can see when they are most active. If I know that every day between 2:30 to 3:00 pm, their phone is inactive, it suggests they take a snooze every day. A rich digital footprint is changing the entire scenario. A person may not know about themselves as much as an investigative agency can discover.
However, this level of detail does not apply to day-to-day policing, which remains restricted to routine tasks. There are specialised agencies like the National Investigation Agency (NIA) which handle cases of terrorism. Because of the technological developments, we are capable of detailed footprinting of criminals.
Use of Psychologists in Handling Criminals
For a crime to be established, two elements must be matched: mens rea (the intent to commit a crime) and actus reus (the actual act of committing the crime). In some cases, mens rea may not be present, leaving the burden of proof on the prosecution, as seen in drug offenses. Despite this, mens rea remains a crucial aspect, as it represents the intent to commit a crime, while actus reus refers to the actual commission of the crime.
Although we have not historically involved psychologists and psychoanalysts in the criminal justice system, we are now making efforts to incorporate their expertise. For instance, psychologists are being used for the de-radicalisation of extremists, and some progress has been made in this area. However, there is a challenge regarding the extent to which the Evidence Act supports the inclusion of psychologists as experts. Currently, the Evidence Act does not define psychologists or psychoanalysts as experts. While they can be brought in, they are not categorised under general forensics. This field is expected to progress over time.
We are placing significant emphasis on crimes against children. Unfortunately, children are increasingly becoming both perpetrators and victims of crime. Today, about 17 to 18% of offenders are juveniles, compared to around 2% about ten years ago. There is a definite need to explore and utilise psychologists more extensively in handling such cases. Although there is currently a deficiency in this area, efforts are being made to address it
Use of GPS Anklets and Wristbands in Criminal Monitoring
GPS anklets or wristbands are used by some countries with the concept that a jail sentence is not always necessary for every individual. Statistically, when a person goes to jail and spends a significant amount of time there, they often come into contact with other criminals, which can hinder the correctional aspect. While prisons are now called Correctional Services, the intended corrections may not always take place.
This is why the concept of geofencing using GPS collars has been introduced. First-time or petty offenders can be monitored through geofencing rather than being sent to jail. Currently, this technology is not available in India, but efforts are being made to introduce it. The Bureau of Police Research and Development (BPR&D) is actively pursuing this aspect in collaboration with the judiciary, as legislative changes and judiciary approval are necessary.
The use of GPS anklets and wristbands can reduce the pressure on jails and allow for monitoring without subjecting individuals to the demeaning process of being put in jail. Although the process is still being developed, it is expected to be implemented within two to three years.
Crime Through the Ages
Crime is not new; it has been a part of society since ancient times. Whether you read the Mahabharata, the Ramayana, or the Bible, you’ll find references to offenses such as kidnapping and other crimes. Crime was committed by individuals with high stakes, and this remains true today, especially in the realm of digital crime, where a lot of money is being made by criminals.
In the past, police referred to “modus operandi” to describe the methods used by criminals. Twenty years ago, crimes were mainly property crimes or bodily offenses. Property crimes included pickpocketing, burglary, robbery, and dacoity. These crimes required specific skills and training, such as knowing which phase of the moon provided the best cover for nighttime burglary or how to break a lock.
However, the landscape has changed significantly. Today, digital crime is prevalent, and 99% of these offenses are based on social engineering. Criminals trick individuals into sharing their data. Real cybercrimes, which involve network forensics or data alteration, make up less than 1% of cybercrimes. These high-stakes crimes are often committed by state or non-state actors.
Preventing Digital Crime
The key to preventing digital crime is education. People need to understand the importance of not sharing their credentials. Simple actions, such as not sharing OTPs or account information and avoiding calls that ask for credentials, can prevent most scams.
Unfortunately, many people fall victim to these scams daily. However, there are systems in place to address this. For example, you can call the helpline 1930 immediately if you suspect a scam. The helpline works by freezing the accounts involved in the scam to prevent the money from being further distributed. This process requires swift action, as criminals often layer the money into multiple accounts within hours.
While technology and digital advancements have changed the landscape of crime, social engineering remains a significant threat. By educating people and promoting simple principles like not sharing credentials, we can reduce the incidence of digital scams. However, individual vigilance is crucial.
Q&A
Q: Is there a specific ratio for the distribution of properties to legal heirs?
Justice Balaji: There are Inheritance Laws for Hindus, Christians, and Muslims. Hindu inheritance law categorizes legal heirs into four classes: Class I, Class II, Class III, and Class IV.
Class I Legal Heirs: The preferred heirs include the mother, wife (or husband), and children. If the son is deceased, his widow and children (grandchildren through the son) are also Class I legal heirs. All Class I legal heirs collectively inherit the property in the event of an intestate demise (when a person dies without a will). This means the property is divided equally among the mother, wife, children, and grandchildren.
Class II Legal Heirs: If there are no Class I legal heirs, the inheritance moves to Class II legal heirs. The first Class II legal heir is the father. Many may not know that the father is not a Class I legal heir under Hindu law. Other Class II heirs include brothers, sisters, brothers’ children, and sisters’ children. There are about 10 categories in Class II. It is rare for inheritance to go beyond Class II.
For Christians, the surviving spouse takes one-third of the estate, and the remaining two-thirds go to the lineal descendants (children). If a husband dies, the wife gets one-third, and the children share the remaining two-thirds equally, regardless of the number of children.
Muslim inheritance law is more complicated due to the different customary laws followed by Shia and Sunni sects. Generally, the spouse receives one-eighth of the estate, the mother also receives one-eighth, and uncles may receive a larger share than the wife and mother. The specific distribution depends on the sect and its customary laws.
Q: How can we sensitise people against cyber-crimes?
Shankar Jiwal: Artificial intelligence (AI) as we apply it requires neural networks to build on their own for true AI to emerge. However, 99% of so-called AI is generally machine learning or deep machine learning. Beyond this, there is not much progression. Challenges such as deep fakes are emerging, utilising this so-called AI.
The Ministry of Electronics and Information Technology (MeitY) at the union government level is very much aware of these issues. They have established the Indian Cyber Crime Coordination Centre (I4C) to address cybercrime. For instance, citizens can now block their own mobile phones if lost through the Central Equipment Identity Register (CEIR) facility, though many are unaware of this service. The problem lies in the lack of education and awareness. There are many facilities available for citizens to verify if their credentials have been misused, such as purchasing a SIM card in their name.
One notable effort is the Cyber Volunteers program, which invites applications from citizens, especially the younger population. After vetting the applications, selected individuals become cyber volunteers under the specific state jurisdiction. For example, in Tamil Nadu, about 4,000 applications have been received, and 1,600 have been approved. These volunteers are then used to create content and spread awareness about cybercrime. They can form small groups to act as messengers or ambassadors for this awareness.
The Government of Tamil Nadu, with the Honourable Chief Minister’s sanction, has allocated two crore rupees for an awareness campaign on cybercrime. In the coming days, efforts will be made to create buzz and increase awareness about these initiatives.
Q: Will AI replace judiciary in the future?
Justice Balaji: AI can never replace judges because judicial decisions require the human element and the heart. For instance, in a child custody case, human values are paramount. You cannot infuse human values into artificial intelligence. Ultimately, it is the human mind and brain that can make appropriate decisions based on the given facts.
The Supreme Court has started using AI to bring together common and related cases, which helps reduce the backlog. This approach is being adopted by high courts and will eventually trickle down to the lowest district magistrate courts. AI can assist in the administration and organisation of cases but not in deciding them.
Q: Considering the increase in longevity, do individuals aged 80 and 90 still possess testamentary capacity?
Justice Balaji: There is no bar to writing a will as long as the individual is a legal adult (major). Even at the age of 99, one can write a will. The only condition is that the individual’s mind must follow their pen; they must understand what they are doing. This is why the role of witnesses is crucial. Witnesses must testify in court that, yes, this person was 99 years old, sitting in their office chair, read the will, and knew what they were doing. Therefore, age is not a barrier. Testamentary capacity must be proven as it is a fundamental requirement.
For instance, during my practice, I encountered an 87-year-old lady who wanted to write a will. She was in a hospital, so I suggested that the witnesses be the doctors. We examined the doctor, and we succeeded in proving her testamentary capacity. Another option is to video record the will, which minimises the chances of it being contested. However, with today’s technology, even videos can be tampered with, but they still provide a higher level of assurance.
