Under the Indian Succession Act 1925, Wills are legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death.
Will or Testament
What is legal will and testament?
A will or testament, a legal document by which a person, the testator, expresses their wishes as to how their property should distribute at death, and names one or more persons, the executor, to manage the estate until its final distribution.
Is unregistered will valid?
The primary aspect of a WILL to be legally valid is two attesting witness to the will. The testator should sign in the presence of two attesting witness. When only one person has signed as witness then it is not a valid Will. Wills need not registered. Wills which not registered are valid if signed by two attesting witnesses.
What is property in a will?
A will, a testament that declares the intention of the person with regard to his wealth and property which he wants to execute after his death. If one dies without making a will (called ‘intestate’ in legal terms), his wealth thus inherited by the heirs according to the inheritance laws.
Which persons are capable of making will?
Every person of sound mind not being a minor may dispose of his property by will.
1. Explanation –A married woman may dispose by will of any property which she could alienate by her own act during her life.
2.Explanation –Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
3.Explanation –A person who is ordinarily insane may make a will during interval in which he is of sound mind.
4.Explanation –No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause that he does not know what he is doing.
Who is testamentary guardian?
A father, whatever his age may be, may by will appoint a guardian or guardians for his child during minority.
Who is testator of a will?
- A testator is a person who makes a valid will. It is the document through which a deceased person disposes of his property.
- A person who dies without a will thus said to have died intestate.
- A testator must be of sound mind when making a will.
- To ensure that testator is of sound mind, states require that the signing of a wills should witnessed by multiple persons.
- A testator also should be making the will without duress and free of coercion from other persons.
- If the testator is not acting of her own free will in consenting to the terms of the wills, a court may later void all or part of it.
To whom can probate be granted?
Probate can be granted only to the executor appointed by the will. A Probate establishes the legal character of the person (to whom the Probate has been granted) as one who can act on behalf of the maker of the Will who has died. A Probate cannot be granted to a minor or a person of unsound mind or to an association of individuals. (unless it’s a company)
However, “there is nothing in the law to prevent the Executor from acting as an Executor. The Executor has every right to exercise power given to him without obtaining Probate. A Probate mainly gives adequate protection”.
When can probate be granted?
A Probate thus granted only after seven clear days from the date of death of the person who has made the Will.
When is probate necessary?
A Probate is necessary when the Will or Codicil is that of Europeans, East Indians, Armenians, Jews, Indian Christians and Parsis. It is also necessary in case of Wills or Codicils of Hindus, Buddhists, Sikhs or Jains in Chennai, Kolkata and Mumbai or where they relate to immovable asset in these places. It is also necessary where a debt due to the estate of a Hindu is to be recovered.
How to obtain probate of the will in India?
A will drawn up to distribute the assets of a deceased testator, according to their wishes. However, sometimes a probate might considered necessary to prove that it is genuine, otherwise the administrator or executor appointed under the it may not able to administer its provisions. A probate granted by the High Court with the court seal and a copy of the will attached.
Here are the following steps to obtain a probate
The application for a probate has made to the competent court (a pecuniary jurisdiction may require a higher court to issue a probate for high-value immovable assets) through a lawyer or advocate.
The court usually asks the petitioner to establish the proof of death of the testator, as well as proof that the will has been validly executed by the testator, and that it’s the last will and testament of the deceased.
After receiving the petition for a probate, the court issues a notice to the next of kin of the deceased to file objections, if any, to the granting of the probate. It also directs the publication of a citation on board to notify the general public.
The court may demand a percentage of the assets as a fee to issue a probate. This, however, is also subject to a ceiling. In addition to the court fee, the lawyer’s fee also should taken into account.
What is a letter of administration?
A Letter of Administration issued by a competent authority. It appoints the Administrator to dispose of the asset of a person who has died without making a Will or in relation to a asset that does not cover in it.
Who can get a letter of administration?
A Letter of Administration may granted to one or several people who may apply to the Court. If no one applies, it may then granted to a creditor of the deceased. A Letter of Administration cannot granted to a minor or a person of unsound mind.
What is a succession certificate in Indian Succession Act?
A Succession Certificate gives authority to a person who obtains it to represent the deceased for the purpose of collecting the debts and securities due to him. It meant for protection of debtors, so they know as to whom they can safely pay the debt due to deceased person. The certificate does not establish the title of the holder of the certificate as the heir of the deceased, but only furnishes him/her with an authority to collect the debts and allows the debtors to make payment without incurring any risk. A Succession Certificate, not granted in cases where obtaining a Probate of Letter of Administration considered necessary.
What is privileged will?
Any soldier employed in
- an expedition or engaged in actual warfare or
- an airman so employed or engaged or
- any mariner being at sea,
may if he has completed the age of eighteen years, dispose of his property by a will made.
Such wills called privileged wills.
What is Unprivileged will?
Every testator, not a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea.
Execution of privileged and unprivileged wills
Execution of privileged will
- Privileged wills may be in writing, or may made by word of mouth.
- The execution of privileged wills shall governed by the following rules:–
- The will may written wholly by the testator, with his own hand. In such case it need not signed or attested.
- It may written wholly or in part by another person, and signed by the testator. In such case it need not attested.
- If the instrument purporting as will written wholly or in part by another person and not signed by the testator. The instrument shall deemed as testators will, if shown that it was written by the testator’s directions or that he recognized it as his will.
- If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, may invalid, provided that his non-execution of it can reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.
Execution of unprivileged will
Every testator, not being
- a soldier employed in an expedition or engaged in actual warfare, or
- an airman so employed or engaged,
- or a mariner at sea,
shall execute his will according to the following rules:-
- Testator shall sign or affix his mark to the will, or signed by other person in his presence and direction.
- The signature or mark of the testator, or the person signing for him, shall placed that it shall appear as it intended to give effect to the writing as a will.
- The will shall attested by two or more witnesses. Each of two seen the testator sign or affix his mark to will or seen other person sign the will.
- The signing of the will should be
- in the presence and by the direction of the testator,
- or has received from the testator a personal acknowledgment of his signature or mark,
- or of the signature of such other person; and
- each of the witnesses shall sign the will in the presence of the testator.
NOTE- It shall not be necessary that more than one witness be present at the same time.
How can will revoked?
Revocation of Wills / Loss of Wills
Revocation of Wills
A will can revoke in the following manner:-
- By execution of a subsequent will
- By some writing and declaring an intention to revoke the will
- Burning of the will
- By tearing of the will
- Otherwise destroying the will
When a will evoked by a subsequent will, the will so revoked will have no operation
Loss of Wills
If a will is lost it then presumed to revoked. If the will was seen with the testator, but could not found after the death of testator, it then presumed that the same has revoked by the testator by destroying the same.
Revocation of a will by testator’s marriage
Every will shall revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
Explanation.–Where a man invested with power to determine the disposition of property of which he does not own, he does have power to appoint such property.
Revocation of unprivileged will or codicil
No unprivileged will or codicil, nor any part thereof, shall revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will herein before required to execute, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
Revocation of privileged will or codicil
A privileged will or codicil may be revoked by the testator by an unprivileged will or codicil, or by any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged will, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.
Explanation.–The revocation of a privileged will or codicil by an act accompanied by such formalities as sufficient to give validity. It is not necessary that the testator should be in a situation which entitles him to make a privileged will.
Revival of unprivileged wills
- No unprivileged will or codicil, nor any part thereof, which has revoked in any manner, shall revived otherwise than by the re-execution thereof, or by a codicil executed in manner herein-before required, and showing an intention to revive the same.
- When any will or codicil, which has partly revoked and afterwards wholly revoked, revived, such revival shall not extend to so much thereof has revoked before the revocation of the whole thereof, unless an intention to the contrary shown by the will or codicil.
Wording of wills
It does not considered necessary that any technical words or terms of art should used in a will. The wording should deem such that the intentions of the testator could known therefrom.
Construction of terms in India
- the word “children” applies only to lineal descendants in the first degree of the person whose “children” are spoken of;
- the word “grandchildren” applies only to lineal descendants in the second degree of the person whose “grandchildren” are spoken of;
- the words “nephews” and “nieces” apply only to children of brothers or sisters;
- the words “cousins”, or “first cousins”, or “cousins germen,” apply only to children of brothers or of sisters of the father or mother of the person whose “cousins,” or “first cousins,” or “cousins-german,” are spoken of;
- Words like “first cousins once removed” apply only to children of cousins-german, or to cousins-german of a parent of the person whose “first cousins once removed” are spoken of;
- the words “second cousins” apply only to grandchildren of brothers or of sisters of the grandfather or grandmother of the person whose “second cousins” are spoken of;
- the words “issue” and “descendants” apply to all lineal descendants whatever of the person whose “issue” or “descendants” are spoken of;
- words expressive of collateral relationship apply alike to relatives of full and of half blood; and
- all words expressive of relationship apply to a child in the womb who is afterwards born alive.
While creating a will, probate is required and legal consent is compulsory and in contrary trust is mainly created because it helps the author to manage his property and nominate his property for the benefit of a third person as it does not require probate and hence there is no delay in legal consent.
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