It is not expected of a doctor to be aware of consequences of a Will, yet the fact remains that out of every four Will which are made, at least one is attested by a doctor. The importance of a Doctor as an attesting Witness is felt so great that everyone believes that once a Doctor puts his signature on a Will, it then is incapable of being questioned.
In the matter of law, like any other layman, a Doctor too is ill informed and is carried away by myths. Many Doctors are not knowing that they can revoke their Will at any time. Many are not aware that a person can make as many Will as he chooses to and upon making a next Will the previous one is automatically canceled and revoked. They are also not aware that a Will made by a Hindu or a Mohammedan is not revoked by their marriage and that a Mohammedan cannot dispose off more than 1/3rd of his estate or bequeath anything to an heir. Many are also not aware that if in a Will conditions are imposed of an absolute restraint of marriage, the same are void, but if the restraint is reasonable i.e. not to marry under 21 years of age or without the consent of a certain person and the like, such conditions are valid. Many are also not aware that where a Will imposes a condition to be fulfilled before a legatee can take vested interest in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been substantially complied with. For example, in a Will, a legacy is bequeathed to `A’ on condition that he shall marry with the consent of `B’, `C’, `D’ and `E. `A’ marries with the written consent of `B’ and `C’ is present at the marriage. `D’ sends a present to `A’ previous to the marriage. `E’ has been personally informed by `A’ of his intention to marry and has made no objection. Then `A’ has fulfilled the condition of the Will. Everyone do not realise that by nominating a person in the records of a Co-operative Society, that person do not become the owner of the flat or by nominating a person in the Insurance Policy that person do not become the owner of the amount payable under the Policy. A nominee is merely entitled to receive the thing for which he/she has been nominated. A nominee is however liable to distribute and give the flat or Insurance money to the person who are legally entitled to them. Very few are aware that even a partnership or a limited company can be appointed as Executors.
As it is not prevalent in India and perhaps Indian Laws may not recognise it, Indian Doctors may not be aware of a Living Will, which is now common in U. S. A. and many States there recognise it. Through a Living Will, a person declares the medical procedures, he or she wants and does not want, to be performed when terminally ill. Generally, a Living Will applies only to Comatose patients, who can no longer communicate their wishes to terminate life support system. Such Wills are called a Living Will, because unlike Testimonial Wills, they take effect before death. Many times, a Living Will is called “a right to die” or “death with dignity”. The idea of surrendering to death may be frightening, but for most people natural peaceful death is preferable to a meaningless and prolonged existence. Modern technology can keep one alive even when one’s brain is irrevocably damaged. In such a state of physical and mental condition, a prolonged life can emotionally drain the patient’s loved ones, who are made to endure the patient’s condition. It can also impose considerable financial hardship on the family of the patient. With a Living Will, a person expresses when he or she is in good health, his or her rational choice of when to discontinue life support. Doctors are frequently reluctant to honour the request of the seriously ill patient, because they cannot be ascertained whether the decisions are rationally made. A passive euthanasia simply instructs one’s physician not to undertake medical case necessary to prolonged life, when death would naturally occur in the absence of such a medical treatment. Euthanasia literally means a good death. However, Living Will or Euthanasia, at present, are not made or recognised in law in India.
Doctors, who constantly advice their patients to have periodic check-ups of their health, ignore to make their Will not realizing that a Doctor, young or old, who die without making a Will, leaves behind him a legacy of disputes and quarrels.
A Will means the legal declaration of the intention of a testator, with respect to his property, which he desires to be carried into effect after his death.
A Will may be written in any language and no technical words are necessary. It may also be in any form, but to be effective, it must be properly signed and attested as required under the law. A Will is not required to be stamped or registered. Although registration of a Will minimizes the chances of its genuineness being questioned. A person of sound mind, not being a minor, may dispose off his property by a Will. Persons who are deaf or dumb or blind can also make a Will, if they are able to know what they do by it. A person, who is an ordinary insane, may make a Will during an interval in which he is of sound mind. However, a person, who does not know what he is doing on account of intoxication or illness or any other causes cannot make a Will in such a state of mind. A Will is required to be attested by two or more witnesses, each of whom must see the maker of the Will sign or affix his mark to the Will, and each of the witness should sign the Will in the presence of the maker of the Will. The two witnesses need not sign the Will in the presence of each other. If the Will is already signed by the maker of the Will, each witness must receive from the maker of the Will, a personal acknowledgement of his/her signature or mark on the Will. Care should be taken to ensure that the legatee under the Will should not be an attesting witness to the signature of the maker of th Will, since in that event the bequest made to that legatee is void and cannot take effect.
A Doctor, who signs the Will as a witness need not know the contents of the Will. He merely witnesses the signature of the maker of the Will. It may however be presumed and if need arose may also be argued in a Court of Law when a Will is under challenge that as the signature of the maker of the Will has been witnessed by a Doctor, a presumption arises that the maker of the Will was in good physical and mental condition when he signed and made that Will. A doctor, whilst signing a Will as an attesting witness, must remember that in the event of that Will being challenged, it is likely that he may be summoned as a witness in a Court of Law to give evidence, at which time the most likely question which will be asked to him will be the physical and mental condition of the maker of the Will.
1) E-Z Legal Guide – U. S. A. : Living Will – Power of Attorney for Health Care.
2) Parukh: Indian Succession Act, 1925 – 8th Edition.
3) Nabhi : How to make a Will – 5th Edition.