Name: Freddy Bisni

Age: 75

City: Colaba, Mumbai

Summary: Not leaving behind a clearly drafted Will can leave your family clueless and confused - and can even cause more harm than good.

Was there a Will: Yes

In spite of Ms Dhapla having left a last valid Will, it was shrouded in ambiguity, and eventually caused confusion and tussle between the Beneficiaries post her demise.

Story

Freddy’s cousin, Dossa Dhapla, with whom he and his family lived in a rented flat, was unmarried when she passed away. She had left a valid Will behind, but it was ambiguous. Among other things, she had mentioned in the Will that she wanted to bequeath the rights over the rented flat and garage and ‘all the things in it’ to her cousin, Freddy. This one phrase caused a dispute and the matter was taken to court. 

In the case of Mr Freddy Bisni vs Mr Roozbeh Mistree (14 December, 2018, Bombay High Court, Suit No 579 of 2015), the Testator, that is the person making the Will, Ms Dossa Dhapla, created her last Will in 1986, many years before she died. She was unmarried, without children and lived in a rented flat with her cousin, Freddy, and his family. At the time of her passing, Ms Dhapla was involved in an ongoing litigation with her landlord regarding transfer of tenancy rights over the rented flat, previously held by her late mother. In her Will, the Testator, among other details, mentioned that she wanted to bequeath the rights over the rented flat and garage and ‘all the things in it’ to her cousin, Freddy. The physical copies of the shares and securities she held were also found in the flat at the time of her demise.

It was therefore contested whether the line ‘all other things in the said flat’ included these shares and securities certificates in the bequest. The Testator had already allotted a fairly large share of her assets to her cousin Freddy, in comparison to her other beneficiaries.

Also, the Testator owned bank accounts with deposits running into a couple of lakhs regarding which her Will was silent. Besides these, the Testator had bequeathed certain amounts to her Beneficiaries without specifying the source they were to consider for obtaining them. Due to these reasons, a petition was filed challenging the Will and the bequests made in it on account of the stark ambiguity evident from its content.

Challenges

• Although Ms Dhapla had left a last valid Will, it was shrouded in ambiguity and eventually caused confusion and tussle between the Beneficiaries post her demise, causing the contents to be challenged in court.
• The key areas of confusion were regarding the line ‘all other things in the said flat’ in the Testator’s Will, which had been added while bequeathing the rights to the rented flat and her assets within it. The court had to ponder a great deal over the intent of the Testator in writing this statement, as well as the surrounding circumstances of the case, the family relationship of the Testator, and the situation in which she might have used those words.
• Besides, the testator also left out important information in her Will, such as her bank details. Crucial bank information is often private, and if the Testator forgets to add such details, then it becomes daunting for Beneficiaries to run around trying to find the details; and getting authorities to transfer the assets, without a clearly defined Will, can become a herculean task for them.
• The Testator also mentioned a whole list of monetary bequests to her Beneficiaries and charities, without clearly mentioning the source from where these funds were to be deployed.
• Allocating assets without a definite source or valid details can render such statements or bequests in the Will invalid.
• Even the clause regarding ‘residuary assets’ in the Testator’s Will was unclear, whereby the allocation of assets were misunderstood by the Beneficiary, causing contention between them.

Learnings

• The court finally opined that the ‘all other things in the said flat’ statement in the Will would not include physical shares and securities, and these were thus classified as ‘residuary assets’.
• The court also ordered that the amount received from liquidating those assets would be allocated to the Testator’s ongoing litigation matter and the list of charities she had mentioned in her Will.
• As the Testator had not considered these simple yet important nuances while writing her Will, the court had to act upon its best judgement, delve and interpret the Will as per their understanding to resolve the matter.
• The courts are usually burdened with many ongoing matters, and cases like this only add to the extended timelines for resolution of cases, ultimately causing huge financial liability upon the parties.
• At a time, when losing a loved one is already a painful burden to bear, it makes it even more stressful for family and friends to be battling for interpretations regarding the content of a haphazardly created vague Will, running pillar to post in court, which pretty much defeats the purpose for which it was created in the first place. Besides, happy relationships between family members and friends can become strained when there is confusion caused due to an unclear Will.
• Therefore, a big lesson for us to take from this is that the language of the Will should always be clear and unambiguous.
• At Yellow, we have worked hard to simplify the language and include legal terminology (ie, legalese) that is absolutely required. We also provide a crisp summary of each clause in easy-to-understand language. At any point, if you need assistance in your estate planning, Yellow also provides consultations with succession planning experts to address your queries - so that your wishes are clearly captured without causing distress to your Executor and family members when the Will takes effect.