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 Wills -
Introduction
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 & 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 & 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 & 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 & 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 :
- 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
:
- 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 :
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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