The
issue which is dwelled upon in the present write up is – the execution and obtaining
probate of the Will; and whether it is necessary to obtain Probate of the Will.
Who can make a Will: Every person of sound mind not being
a minor may dispose of his property by Will. For the sake of clarity, the maker
of the Will is described as “testator”.
The disposition by Will should always be
specific to the person and specific to the property, i.e. to say, full name of
the person and his / her relationship with the testator should be stated; and
sufficient description of property must be mentioned, so as to identify it and
distinguish it from all other parts of the property.
To what properties Will can be made: It is very important to bear in mind that the properties which is sought to be given under will
must belong to the testator i.e. to say, grant can only be made of such
properties to which the testator is entitled to, or has any “interest” in the
property which can be transferred.
The Kinds of properties: The word property connotes everything which is the
subject matter of ownership; corporeal or incorporeal; tangible or intangible;
visible or invisible; real or personal; everything that has an exchangeable value
or which goes to make up wealth or status. Properties includes Immovable
properties, like land, Buildings, flats and alike; Jewellery; Cash, Bank
savings, FDs etc.; Pensions; Shares / Stocks / Mutual funds; Insurance
Policies; Other movable properties; benefits under Contracts / Agreements etc.
The testator may say in his Will that after his death, his any of the body
organ like Eyes or any other transplantable organ be donated; or he be cremated
with plainness.
Mode of Execution of
Will: The
testator may himself prepare the Will in his local language, in his own hand
writing or may prepare with the help of his immediate friend or relative or
with the help of an Advocate. No stamp paper or any other legal instrument is
required; and the Will may be prepared on a plain paper and even with the
Pencil. The testator should, preferably, sign / affix his mark (thumb
impression) at the bottom end of each page of the Will. And then at the end of
the Will, the testator should sign / affix his mark, followed by at least two
witnesses, who will witness / see that the testator has signed the document /
paper which is styled as Will.
Further, it is not necessary that the testator should sign in
the presence of the Witnesses. The testator may in such cases would inform the
witnesses that he has signed this writing / Will, or in the alternative the
witnesses may take personal acknowledgement from the testator that if he has
signed / affixed his mark on the Writing which is styled as Will. Further, it
is not necessary that all / both the witness must remain present at the same
time.
The full name and residential address of the witnesses must
be set out against their signature. The witnesses attesting the execution of
the Will must also a person of sound mind and not being a minor. The witnesses who are attesting the execution of the
Will are not concerned with the contents of the Will, and they merely witness
the execution of the Will by the concerned person. The person executing the
Will is not obliged to share the contents of the Will with the attesting
witnesses.
Revocation / Alteration
etc in the Will:
Alteration, corrections, if any, in the Will can be made by the signature of
the testator and the subscription of the witnesses in the margin or on some
other part of the will opposite or near to such alteration, or at the foot or
end of or opposite to the memorandum referring to such alteration, and written
at the end or some other part of the will. A Will may be revoked at any time
during the life time of the person making the Will, when the maker is competent
to dispose of his property by will.
Preferably,
the Execution / signing of the Will by the person and signing by two attesting
witnesses, may be video-recorded / photographed.
Naming Executor of the Will: The law contemplates that the testator would
preferably specify the name of persons who, after his/ her death, would take
control of the property and would secure that the persons to whom properties
are given in the Will are duly handed over. The person so appointed must be the
most trustworthy person. He / she may be a family member / legal heir or may be
a close friend. Also, the said person may be a beneficiary under the Will.
Residuary clause in the Will: The Will should preferably contain a clause which
would set out name of persons who will get all the property, movable and
immovable, which are not specifically given to any person in the Will; any /
all properties which are acquired after the execution of the Will.
Doctor’s certificate: Preferable, on the date of execution of the Will, a
doctor must examine and certify to the effect that the person making the Will,
is in a sound physical and mental health to execute Will.
A Will may provide for the following: Due
to the paucity of space some of the relevant sections of Indian Succession Act,
1925 are stated which spells out the various attributes of granting properties
in the Will. The said Sections are 60, 96, 110, 122, 134, 150, 171, 191.
Registration of Will
is not compulsory:
However, Registered Will gives a
presumption under the law that Will was executed by the deceased testator, and
it cannot be alleged that the Will was forged. The Will may be registered even after the death of the testator, so as to
protect the Will from being destroyed or stolen.
Probate of Will: implies obtaining a certificate from the competent
court of law that the Will is genuine and it be given effect to.
The
issue of obtaining of Probate / Letters of Administration (LoA) is contained in
Section 213 of Indian Succession Act, 1925. From the careful reading of said Section
reveals that the said Section requires obtaining of Probate / LoA by the
Executor / Legatee only when the existence or the bonafides of the Will is challenged
by any of the legal heirs / Legal Representative or by any other interested
persons; and a Suit is filed by the said Legal heir / Interested persons
against the Executor / Legatee; or A Suit is filed by the Executor / Legatee
against such persons who are in possession of the estate of the deceased
testator. And when any such Suit is filed, the Executor / Legatee can establish
their right in the said Suit, only if they obtain Probate / LoA.
In
an Appeal case before it, the Hon’ble Madras High Court were dealing with a situation
where the Executing Court recognized the rights of the legatee on the
basis of the unprobated Will. The Hon’ble High Court upheld the decision of
the Executing Court, and inter alia, observed that – even if the Will was
not probated, the title vested with the legatee immediately on the death of the
propounder of the Will. (2006) 1 MLJ 354. The other important rulings in this
respect are - AIR 1972 Ker 152; AIR 2015 Cal 27; AIR 2016 Civil Cases 1453 Del.
Let
us also look at Section 60(1)(m) of CPC, 1908, which inter alia, deals with the
attachment of Properties “belonging” to the judgment debtor (the person against
whom decree is passed), in execution of a decree. The said section bars
attachment of such properties of a judgment debtor which are in the nature of
an expectancy of succession by survivorship or other merely contingent or
possible right or interest. The rights under the Will or under intestate
succession are not in the nature of an expectancy of succession or merely
contingent or possible right, but are absolute and crystallized.
Further,
according to section 213(2) of Indian Succession Act, 1925, probate of Will
which was executed by a Muslims or Christians, is not mandatory. Further, as
per this Section, when a Will of a Parsi is not probated, which was made within
the local limits of the ordinary original civil jurisdiction of the High Courts
at Calcutta, Madras and Bombay, and where such wills are made outside those
limits, in so far as they relate to immovable property situate within those
limits. then no legatee can claim right under said Will and such testator is
treated to have died intestate.
Legal actions under Will: A Suit may be filed to claim property under the Will
or by way of inheritance, against the executor or the administrator or some
other person who is legally charged with the duty of distributing the estate of
the deceased, within 12 years from the date, when the legacy or share becomes
payable or deliverable, under Article 106 of Limitation Act, 1963. A Suit may
be filed against the executor, administrator or any other representative,
within two years from the date when the wrong complained of is committed, under
Article 83 of Limitation Act, 1963. A Suit may be filed to declare the Will as
fraudulent within three years under Article 58 of Limitation Act, 1963.
Sandeep
Jalan
Advocate
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