The laws of inheritance are diverse and complicated. The rules of distribution of property in case a person dies without making a Will are defined by every Law of Succession. Therefore, one should make a Will to ensure that one's actual intension is manifested.
It often happens that, due to ignorance of law, people fail to make a proper, enforceable Will. Consequently, confusion ensues and often, the rightful heirs do not receive their fair share.
THE LAW APPLICABLE TO WILLS
India has a well developed system of succession laws that governs a person's property after his death. The Indian Succession Act 1925 applies expressly to Wills and Codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians but not to Mohammedans as they are largely covered by Muslim Personal Law.
• The Indian Succession Act, 1925
• Hindu Personal Laws
• Muslim Personal Laws
• The Indian Registration Act, 1908
WILLS UNDER INDIAN SUCCESSION ACT, 1925
S.2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death.
-is an untitled document which state after the
death of a person making the deposition.
-can be revoked , modify or substituted by the person executing
the Will at any point of time during his/her life time.
-for executing the Will the person must be fully competent, as
much as he/she should not be a minor and should not be a
person of unsound mind, as per Section 59 of the Indian
-has to be signed by the executor of the Will and has to be
attested by at least two witnesses.
-Will under law is not required to be compulsory registered.
MAKING A WILL
By making a Will a person can decide what happens to his/her property and possessions after his/her death. If a person dies without a Will, his/her assets may be distributed according to the law rather than person's wishes.
A Will sets out who is to benefit from a person’s property and possessions after his/her death.
There are many good reasons to make a Will:
A person can decide how his/her assets are shared.
If the person an unmarried couple, he/she can make sure his/her partner is provided for.
If the person is divorced, he/she can decide whether to leave anything to his/her former partner.
WHAT SHOULD BE INCLUDED
-how much money and what property and possessions.
-who to benefit from the Will.
-who should look after any children under 18 years of age.
-who is going to sort out estate and carry out wishes after
a person’s death - that is executor.
-leaving a gift to charity.
KINDS OF WILLS
Conditional Wills: A Will maybe made to take effect on happening of a condition.
Joint Wills: Two or more persons can make a joint Will.
Mutual Wills: Two or more persons may agree to make mutual Wills
Privileged Wills: A special category of Wills. S.65 of The Indian Succession Act 1925 provides that a Will made by a soldier or a airman or a mariner, when he is in actual service and is engaged in actual warfare, would be a privileged Will.
FORMS AND FORMALITIES
Form: There is no prescribed form of a Will. 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: 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. 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.
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.
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.
EXECUTION OF A WILL
On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate.
The court will ask the other heirs of the deceased if they have any objections to the Will.
If there are no objections, the court will grant probate.
A probate is a copy of a Will, certified by the court.
In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent.
This has to be displayed prominently in the court.
Thereafter, if no objection is received, the probate will be granted.
It is only after this that the Will comes into effect.
'Probate' is a term commonly used about applying for the right to deal with a deceased person's affairs. It's sometimes called 'administering the estate'.
In other words, Probate means copy of the will certified under the seal of a court of a competent jurisdiction.
A probate is to be treated as conclusive evidence of the genuineness of a will.
TO WHO CAN A PROBATE BE GRANTED
Under the Indian Succession Act, 1925, a Probate can be granted only to the executor appointed by the will.
It cannot be grated to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company, satisfies the conditions prescribed by the rules made by the State Government.
A probate cannot be granted until the expiration of seven days from the date of the testator's death.
PERSONS ELIGIBLE FOR GRANT OF LETTER OF ADMINISTRATION
Where the deceased has died intestate, the court may grant administration of his estate to any person, who is applicable for in the case of such deceased would be entitled to the whole or any part of such deceased's estate. When several of such persons apply for such administration, it shall be the discretion of the court to grant it to any one of them. When no such person applies, it may be granted to a creditor of the deceased.
PROCEDURE FOR OBTAINING PROBATE
A petition for probate must be filed in court along with the Will in question. It should contain the following facts:
the time of the testator's death,
a copy of the last will and testament of the deceased
annexed to the petition,
the amount of assets which are likely to come to the
petitioner's hands, and
the petitioner is the executor named in the Will.
The application for probate shall be signed and verified by the executor or beneficiary.
The petitioner shall furnish a blank stamp paper of value equal to the requisite court fee, along with the application. The court shall grant the probate on the said stamp paper.
After receipt of the petition, the court issues notice to the next of kin of the deceased to file their objections, if any, to the grant of probate.
A general public notice is also given in a newspaper.
On the satisfaction that the Will in question has been validly executed the court will grant probate to the executor named in the Will.
In the Allahabad High Court held in Testamentary Case No. 28 of 2005 that the Indian Succession Act does not provide any limitation to probate the Will. Any other application for which no period of limitation is provided elsewhere, the Limitation Act 1963 would be applicable which provides that the period of limitation will be three years as per the Article 137 of the Limitation Act 1963.
Our Hon'ble Division Bench held in Original Side Appeal No.321 of 2000 that the revocation of Probate to be filed on the grounds that the (a) the proceedings to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion; or (c) the grant was obtained by means of an untrue allegation of a fact under Section 263 of the Indian Succession Act, 1925. In the light of the above grounds the person who has got some interest in the property can file an application for revocation of Probate.