My brother-in-law passed away in a hospital last year. Before he died, he gave verbal instructions on how he wanted his assets divided and asked me to carry out his wishes. He did not leave a written will. Now, his mother is claiming a share of his assets, which my sister is contesting based on the verbal instructions. I have been asked to mediate this situation as “executor” of the oral will, but I am not sure if I have the authority to do so. Can you advise me?
—Name withheld on request
In India, a will cannot be made orally, but must be drawn up and signed in the presence of at least two witnesses. The only exceptions to this rule are oral wills by certain members of the armed forces engaged in combat.
Assuming the exception does not apply to your brother-in-law, his oral statement before his death is not a valid will and, as a result, you cannot be considered the “executor” of his will.
However, you can mediate a dispute between family members in your personal capacity, but you would have no formal authority or legal rights to make decisions regarding your brother-in-law’s estate, as your appointment as executor would not be recognised by law.
Since her brother-in-law had no valid previous will, he is said to have died “intestate.” As for the contrary claims of her sister and mother-in-law, they would depend on the personal law of intestate succession applicable to her brother-in-law.
Assuming he was a Hindu, Buddhist, Sikh or Jain, his wife (his sister) and his mother (his sister’s mother-in-law) would both have a share in his estate.
They may consider resolving their differences by entering into a family agreement to distribute the estate among the heirs, and in doing so, they may be guided by the oral instructions given by their brother-in-law, but they will not be bound by those instructions.
The above answer is based on the Indian Succession Act, 1925, which provides that a will must be signed or marked by the testator himself or signed by some other person in the presence of the testator, or under his direction, and must be certified by at least two witnesses.
Please note that this applies to people of all religions except Muslims and separate legal advice may be sought in this regard.
—Shaishavi Kadakia is a partner and Radhika Parthasarathy is a senior associate at Cyril Amarchand Mangaldas, Mumbai.
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