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Wills And Codicils

A Will is a document which ensures that your wishes with respect to your assets and property are followed after your death.
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lawyersLaw of Wills in India
A Will is a document which ensures that your wishes with respect to your assets and property are followed after your death.

There Often arises problems and complications when a person dies without a Will. Yet we put off making a Will, not realizing the predicament we put our family in, after our death. It's a little effort that goes a long way. You will find the answers to the questions you may have had on making your Will, registering it and other relevant information.


Definitions:
A Will is defined as "the legal declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death." In other words, a Will or a Testament means a document made by person whereby he disposes of his property, but such disposal comes into effect only after the death of the testator.


Codicil
is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will.


Executor
is the legal representative for all purposes of a deceased person (testator) and all the property of a testator vests in him.


Legatee/Beneficiary
is a person who inherits the property under a Will.


Probate
is a copy of the Will, certified under the seal of a competent Court.


Testator
is a person making a Will and executing it
 

Essential Characteristics
Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the person making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be intended to take effect after his death.

Revocability: The essence of every Will is that it is revocable during the lifetime of the testator. People capable of making Wills are, Every person who is

  • not a minor
  • of sound mind
  • free from fraud, coercion or undue influence


Forms and Formalities:

Form of a Will:

There is no prescribed form of a Will. In order for it to be effective, it needs to be properly signed and attested. The Will must be initialed by the testator at the end of every page and next to any correction and alteration.

Language of a Will: A Will can be written in any language and no technical words need to be used in a Will, however the words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.

Stamp Duty: No stamp duty is required to be paid for executing a Will or a codicil. A Will, therefore, need not be made on stamp paper.

Attestation: A Will must be attested by two witnesses who must witness the testator executing the Will. The witnesses should sign in the presence of each other and in the presence of the testator.

Under Parsi and Christian law, a witness cannot be an executor or legatee. However, according to Hindu Law, a witness can be a legatee. A Muslim is not required to have his Will attested if it is in writing.

Registration: The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity. In India, the registration of Wills is not compulsory even if it relates to immoveable property. The non-registration of a Will does not lead to any inference against the genuineness of a Will. In other words, registration therefore does not give any special sanctity to the Will though registration of the Will by the testator himself evidences the genuineness of the Will.

Whether registered or not, a Will must be proved as duly and validly executed, as required by the Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen.

Procedure for Registration: A Will is to be registered with the registrar/sub-registrar with a nominal registration fee. The testator must be personally present at the registrar’s office along with witnesses.

Revocation and Amendment: A Will can be revoked, changed or altered by the testator at any time when he is competent to dispose of his property. A person can revoke, change or alter his Will by executing a new Will, revoking the earlier Will, registering the new Will (if the old Will is registered), destroying the old Will or by making a codicil. On the marriage of a Parsi or a Christian testator, his/her Will stands revoked, this however does not apply to Hindus, Sikhs, Jains and Buddhists.


Codicil:

A codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. A codicil has to be executed and attested like a Will. A codicil is similar to a Will and is governed by the same rules as a Will.

Probate and Letters of Administration
Probate:
A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator. It is the official evidence of an executor's authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or Chennai.

Effect of grant of probates : A probate granted by a competent court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke the probate. However, it only establishes the legal character of the executor and in no way decides the title or even the existence of the property devised. The grant of the probate decides only the genuineness of the Will and the executors right to represent the estate.

  • The grant of a probate is conclusive evidence of the testamentary capacity of the person who made the Will.
  • A probate is conclusive as to the genuineness of the Will and appointment of the executors.
  • Once a probate is granted, no suit will lie for a declaration that the testator was of unsound mind.
  • Probate is conclusive as to the representative title of the executor.

To whom probates can be granted : Under the Indian Succession Act, 1925, a probate can be granted only to an executor appointed under a Will. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.

When a probate can be granted : A probate cannot be granted until the expiration of seven days from the date of the testator's death.

Letters of Administration: In the event a person dies intestate or a Will does not name any executor, an application can be filed in the courts of law for grant of probate.

To whom can a LoA be granted : Under the Indian Succession Act, 1925, a LoA can be granted to any person entitled to the whole or any part of the estate of the deceased person. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.

When can a LOA be granted : A LoA cannot be granted till the expiration of fourteen days from the date of the testator's death.

Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the person making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be intended to take effect after his death.

Revocability : The essence of every Will is that it is revocable during the lifetime of the testator. People capable of making Wills are, Every person who is:

  • not a minor
  • of sound mind
  • free from fraud, coercion or undue influence

Executors:
An executor is a person who is appointed by a testator to execute his Will. In other words, an executor is duty bound to distribute the assets of the testator as per the provisions of his Will. A probate of a Will is granted only to an executor appointed by the Will.

Who can be an Executor: All persons capable of executing Wills can be executors. Even a minor can be appointed an executor of a Will, but a probate cannot be granted to the minor until he attains majority. A testator can appoint one or more executors. The appointment of an executor may be absolute or for a limited purpose or limited time. An executor as such does not derive any benefit under the Will, unless specifically provided for. However, as an executor has vast powers and the property vests in the executor until it is finally distributed to the legatees, it is therefore advisable to appoint a responsible and accountable person/institution such as a bank as an executor. The Executor is primarily appointed to manage the estate of the deceased for the benefit of the beneficiaries/legatees under the Will.

Legal status of the Executor: The executor is the legal representative for all purposes of a deceased person and all the property of the testator vests in him until the property is distributed as per the provisions of the Will. The executor is entitled to represent the testator in any legal action (not including criminal or defamatory proceedings). For example, an executor can sue for recovery of the testator?s debts. It is only the legal estate of the deceased that vests in the executor and the vesting is not of beneficial interest. The property vests in the executor only for the purpose of representation and administration.

Duties of an Executor:

  • To ascertain the assets of the deceased person.
  • To pay testamentary and funeral expenses.
  • To collect the debts and assets of the deceased.
  • To pay the debts of the deceased.
  • To apply for a Probate, whenever necessary.

Applicable laws and Special provisions
Applicable Laws

  • The Indian Succession Act, 1925
  • Hindu Personal Laws
  • Muslim Personal Laws
  • The Indian Registration Act, 1908

Special Provisions

Hindus, Sikhs, Jains and Buddhists Will :

  • A Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists.
  • The executor can also be the witness to the Will.
  • A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.

Parsis and Christians Will:

  • A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.
  • On the marriage of a Parsi or Christian testator, his/her Will stands revoked.

Muslims Will

Muslim Personal Law governs a Muslim testator's power to make a Will, the nature of the Will, its execution and attestation thereof etc. Under the Muslim Personal Law, a Muslim testator can make a Will orally or in writing and no form is required for such writing. However, it is preferable to have a written Will. If the Will is in writing it need not be attested. It may be noted that the provisions of the Indian Succession Act do not generally apply to a Muslim testator unless specifically stated in the Act.

In India, a person who is a major and of sound mind can make a Will and he can dispose of all or any part of his property by Will. However, there are two basic restrictions on the power of a Muslim testator to make a Will,

  • A Muslim can bequeath only one-third of his property by Will.
  • The heirs of a Muslim testator may consent to bequest in excess of one-third of the testator's assets.

A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void if a Muslim testator, after making the Will, becomes unsound of mind and continues to be so till his death. Similarly, a bequest which is contingent, or conditional or in the future or is alternative to another, pre-existing one, would be void. If an executor is appointed by a Muslim testator, the powers and duties of the executor will be in accordance with the provisions of the Indian Succession Act which have been discussed elsewhere.
 

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