The provisions under review, which will come into effect starting 14 April 2023, have been made with the goal of displacing orthodox provisions related to the traditional system of dividing property. They have been drafted to address the unfruitful nature of such divisions in regard to economic development and employment; the existence of cases where people have been deprived of the right to do what they want with property that they have earned; and societal uncertainties created by the current provisions, particularly in cases where more than one person can claim rights.
The provisions for wills have been made to reform the currently established rights to inherit property. They pay attention to international practices and experiences as well. This review attempts to dissect the proposed provisions for wills, from the purview of the present context.
The proposed civil code does not make explicitly clear provisions for wills. For example, wills can be declared legitimate or illegitimate only through elaboration by the courts. It is also essential to clarify provisions regarding implementation. Usually, an executor has to be named when issuing a will. When an executor is not specified, he/she is specified by the courts. An executor specified by a court is called an administrator. The current civil code does not make provisions for that. There is no obligation for the testator to specify an executor.
Only by following established norms governing wills can the current provisions become easier to put into effect.
Procedure for issuing wills
Section 241 is related to procedural aspects of issuing wills. Pursuant to section 240, this section says that the testator can issue a will by making two copies of a document that discloses information regarding the testamentary property as well as the inheritor. In order to verify a will prepared in this manner, it must be signed in the presence of an officially designated authenticator.
The description to be disclosed pursuant to section 241 must be such that the property and rights can be clearly established. If the inheritance of land is under question, the following must be clearly disclosed: proof, address, plot number, type, area, etc. For moveable property or money, description of the moveable property, bank account type, amount, etc. must be specified. When describing the beneficiary, the first and last names of the person, address, and his/her father and grandfather’s names must be specified. Two copies are created so that the testator can keep one copy and give the other to the designated official.
Section 242 makes provisions for the official authenticator. According to this section, the testator must make a will as specified above and present it to the verifier mentioned in the section. The official must then check for errors and ask any procedural mistakes to be corrected. If everything has been accounted for, the officer must explain the meaning and implications of the will. If it is seen that the testator is issuing the testament through his/her free will, the official should ask him/her to sign. The document is then authenticated with the official’s signature. Two legal persons must be present during this process as witnesses. The date and location of the issued document must be disclosed. A will issued without fulfilling the above-mentioned procedure will not be legally valid.
This is the first time a procedure for issuing wills is being brought within Nepal’s legal mechanism. Such provisions have existed in other countries for a long time.
242 Officials who can authenticate wills:
This section determines who can authenticate wills. Pursuant to section 241, the following officials can authenticate wills:
a) land revenue officer
b) field officer at land revenue offices.
c) concerned officials at Nepali Embassies or Consulate General’s offices (for citizens residing abroad)
d) notary public
The above-mentioned authorities can authenticate wills. However, notaries can only authenticate testaments related to moveable assets.
243. Provision related to mystic wills:
Section 243 makes provision for mystic wills. This provision has been brought within the purview of Nepal’s legal mechanism for the first time through this Code. It is different from section 241. Under this provision, the testator can issue a secret will, such that the name of the inheritor is only revealed after the death of the testator. The procedure of issuing this type of will remains the same as described in section 242, except that witnesses are not needed for authentication. The will remains a secret and is kept in an envelope. A copy is kept at the office of the authenticator and the other copy is kept with the testator. Such wills can only be authenticated by land revenue officers or concerned officials at Nepali Embassies/Consulate General’s offices. If the concerned official discloses the beneficiary of a mystic will prior to the death of the testator, action can be taken against him/her. The procedure, manner, and punishments for dealing with such inappropriate actions are clarified in the Commission for the Investigation of Abuse of Authority Act 1991.
244. Special provision related to holographic wills:
This section makes provision for holographic wills, which involves the testator issuing his/her own will by writing it down. Such wills, according to this provision, can be open or mystic but are only relevant to moveable assets. This is also a new provision in the context of Nepal.
245. Procedures to follow when testator has vision impairment:
This provision establishes a separate set of procedures to follow if the testator has vision impairment. In such cases, the authenticator and witness must, separately, read out the will to the testator. For practical purposes, vision impairment, as it related to this provision, means the inability to read the will. The persons reading out the will must explain its meaning and implications to the testator. After the clarification of meaning and implications, consent from the testator must be recorded, and the will is authenticated. Nepali law has made similar provisions for the singing of legal documents where those with vision or judgement impairment, juveniles, and the elderly are concerned. This provision seems consistent with established norms in that regard.
246. Procedures to follow when testator has hearing impairment:
Under this provision, if a testator has hearing impairment but can read, he/she will read the will. If he/she cannot read, sign language can be used. If the testator has a husband/wife, son or daughter, the will should be explained to them, and with their approval, the will can be authenticated in their presence. If such persons do not exist, or if such persons suffer from judgement impairment, two witnesses chosen by the testator will be explained the meaning and implications of the will in order to authenticate it. This provision has been made in the interest of those with hearing impairment.
This section makes provision for the automatic annulment of wills in cases where the beneficiary dies before the testator. In such cases, the testamentary property rights will not be automatically transferred to the beneficiary of the deceased. This provision has been made for legal clarity. It finds precedents in the form of decisions given by the courts.
251. Beneficiary can decline:
This section makes provision for the beneficiary of a will to decline the testamentary property. In such cases, the will is annulled. If the beneficiary declines after the death of the testator, the case will be decided by the established laws that deal with the property of those who do not have children.
253. Transfer of property:
This section makes provision for the transfer of rights and ownership to the beneficiary after the death of the testator. As such, it is a continuation of existing provisions. The beneficiary must register the acquired property under his name through the land revenue office by producing a copy of the will. The relevant land revenue office will then register the name of the new owner. A death certificate of the testator and the beneficiary’s citizenship card must be produced as well. The beneficiary has to pay for the registration charge.
254. The annulment of existing provisions related to inheritance:
Provisions for wills have entered the legal mechanism of Nepal for the first time. Therefore, this section makes provisions for the impacts. The beginning of this chapter renders provisions related to inheritance (section 208-239) ineffective. This provision rejects that particular way of conceptualising property. The chapter aims to radically transform how inheritance is seen.
The beginning of this provision will mark the end of a provision related to divorce. If a husband and wife mutually opt for divorce or if the relation has to end because of the actions of the husband, the previous provision for the division of property or the payment of a lump-sum fine will no longer be valid. The section makes provision for the payment of an appropriate sum of money based on the wealth and income of the husband and the number of children. Additionally, if the income and wealth of the wife is more than the husband’s, the husband does not have to compensate. Until this provision comes into effect, existing provisions will govern what is appropriate. Overall, this provision attempts to displace existing conceptions of inheritance by bringing the concept of wills.
Taking into account international standards, it seems appropriate to make some amendments.
1. Make a provision for mutual wills.
2. Make a provision for the testator to declare multiple beneficiaries through the same will.
3. Make a provision for wills that are immoral or unethical to be considered invalid.
4. A family court must be established and wills kept under its jurisdiction.
5. Among the information revealed through wills, a provision must be made to clearly define who will take over the civil liabilities of the deceased testator.
6. Make a provision to declare all those who cannot be the beneficiaries of a will because of the nature of their profession, or their role as guardians and legal professional. Notary publics and witnesses should also be included in that list.
7. Give responsibility to execute wills for moveable assets to the local authorities.
This research and recommendation paper prepared by legal expert Shiva Bishankhe for the Nepal Constitution Foundation has been finalised based on the inputs given by various pressure groups: women’s, ethnicity-based, Dalit, Madeshi, youth, and others. The Constitutional Foundation would like to thank Nirmala Banjade, Sushma Chaudhary, Deependra K. Rai, Prem Chandra Rai, Mangal Limbu, Ram Maya Lamichane, Ajay Pandey, Laxmi Prasad Uprety, Sundar Lal Chaudhary, Dhruva Koirala, Sambodhan Limbu, Sujan Lopchan Tamang, Luma Simha Bishwokarma, Laxmi Lamichane, Indra Maya, as well as Abhishek Adhikari, Phurpa Tamang and Dr. Bipin Adhikari.
This research has been supported by The Asia Foundation and opinion expressed in this report are of the authors and don't necessarily reflects of The Asia Foundation