A Will is an important document which enables the individual /any living person to rightfully leave his assets and wealth to who ever he chooses to, after his death. In a way a person can ensure that his wishes with respect to his assets and property are followed after his death. There often arise complexities when a person dies without a Will. It is a little effort that goes a long way, not leaving our family in any kind of turmoil, after our death. Some people execute writings, prepared by themselves or with the help and advice of well-meaning friends or relatives. Often, these turn out to be useless in law during implementation, after the death of the person. The crux is that the absence of a will or the invalidity of a will or parts of a will often generates problems for the legal heirs and successors.
AFTER THE DEATH OF A PERSON, HIS PROPERTY DEVOLVES IN TWO WAYS:
- According to the respective law of succession, when no will is made- i.e. intestate
- By way of will i.e. testamentary
LAW OF SUCCESSION: —
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. These rules provide for a class of persons and percentage of property that will be inherited by such persons. It must be remembered that it is preferable that 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. When a male dies unexpectedly or where there has been a tragic demise and there is no will, it often creates problems for the legal heirs and successors. This can result in unintended injustice. The property passes to the minor children, the surviving wife and to the mother of the deceased (although not on good terms) in equal shares. If there is an office or house, an equal share will go to the mother. Shares of companies are also divided equally. It is difficult to get all the heirs on a common meeting ground to write to the companies to transfer the shares to the names of the respective heirs. But all these problems can be obviated if a will is left behind.
- According to the law of inheritance and succession, if a Hindu male passes away,
- Hindu female shares equally with the male i.e. a son and daughter will succeed with equal shares.
- The wife as well as the mother also gets an equal share.
- There is nothing to prevent a Hindu male from bequeathing his entire property to a stranger if he so desires.
- Muslim male cannot will away more than 1/3 of the estate i.e. 2/3rdof the property must be divided among the family members in the shares laid down in the Shariat Act, 1937.
- A Muslim wife cannot be dispossessed.
- Even though she has to share with other wives if there is more than one wife.
- The widow gets a definite share.
- Mohammedan Law gives the male heirs, the sons, twice the share of the daughters.
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
The Indian Succession Act, 1925, a will has been defined as follows:
“A Will is 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.” Important postulates of a will are as follows:
- Legal declaration: A Will is a 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.. It must be signed and attested, as required by law.
- Disposition of property: The declaration should relate to disposition of the property of the person making the Will.
- Death of the Testator: A will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator. It has no effect during the lifetime of the testator. The testator can change his will, at any time prior to his death, in any manner he deems fit.
- Revocability: The essence of every Will is that it is revocable during the lifetime of the testator.
PERSONS COMPETENT TO MAKE A WILL
- According to Section 59 of the Indian Succession Act,
- Any person of sound mind
- Who has reached the age of majority
- The following persons cannot make a will:
- Lunatics, insane persons.
- Minors i.e. below 18 years of age. In case a guardian is appointed to a minor, ;such minor reaches age of maturity only at the age of 21 years.
POINTS TO REMEMBER
- Persons who are deaf or dumb or blind are not, thereby, incapacitated in making a will, if they are able to know what they do by it.
- A person, who is ordinarily insane, may make a will during an interval while he is of sound mind.
- No person can make a will whilst he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, so that he does not know what he is doing.
EXECUTOR OF A WILL
An executor is the person appointed ordinarily by the testator’s by his will or codicil
- To administer testator’s property and
- To carry into effect the provision of the will
- An instrument made in relation to a Will,
- Explaining, altering or adding to its dispositions,
- It shall be deemed to form part of the Will.
- The Testator wants to change the names of the Executors by adding some other names, in that case this could be done by making a Codicil in addition to the Will, as there may not be other changes required to be made in the main text of the Will.
- It may be that the Testator wants to change certain bequests by adding to the names of the legatees or subtracting some of them. It may be some Beneficiaries or Executor may be dead and the names are required to be removed. All these can be done by making a Codicil.
- The Codicil must be reduced to writing.
- It must be signed by the Testator and attested by two Witnesses.
LETTER OF ADMINISTRATION : —
- A certificate granted by the competent court to an administrator
- Where there exists a WILL
- authorizing him to administer the estate of the deceased in accordance with the WILL.
- where a WILL does not name any executor,
- an application can be filed in the court for grant of Letter of Administration for the property.
- And in accordance with law where the deceased has died intestate.
A PROBATE : —
- Probate means
- the copy of the will is given to the executor
- together with a certificate granted under the seal of the court
- and signed, by one of the registrars, certifying that the will has been proved
- The application for probate shall be made by petition to the court of competent jurisdiction.
- A copy of the last will and testament of the deceased should be annexed to the petition.
- The copy of the will and the copy of the grant of administration of the testator’s estate together, form the probate.
- It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator.
- A probate is obtained to authenticate the validity of the will.
- The probate is still the only proper evidence of the executor’s appointment.
- The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator.
- Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.
A SUCCESSION CERTIFICATE : —–
- Succession Certificate can be granted by the court to realize the debts and securities of the deceased and to give valid discharge.
- A succession certificate is a certificate when granted to the person empowers the person
- to receive interest or dividends
- negotiate the transfer or any of them
- with respect to the securities of a deceased person P.S: Securities means any bond, stock, debenture or security
- He is required to dispose of the amount so realised in accordance with the rights of the person entitled thereto.
- The person requiring the Succession Certificate may :
- File an application in the court, where the properties of your deceased relative are situated or where he / she normally resided.
- Depending on the value of the estate of the deceased, the matter shall go to the type of court, which can conduct cases for that value [This is known as “pecuniary jurisdiction” of the court].
- With the names of all other heirs of your late relative as the respondents in the matter.
- Who may after notice to all concerned and a newspaper notice is also ;issued apart from mandatory notice to the respondents.
- Upon the expiry of the time period (normally 1 and a half months) from the date of publication of the notice after the respondents have given their no objection.
- The court passes the orders for issuance of the Succession Certificate to the person/s making such an application.
- File an application in the court, where the properties of your deceased relative are situated or where he / she normally resided.
- Judicial Stamp papers of sufficient amount (as per the prescribed court fees structure) to be submitted in the court, where after the Certificate is typed by the court staff, duly signed and sealed and delivered.
- The certificate takes about 3-4 months from date of filing to receive your certificate.
WILL & NOMINATION
- A nomination is not a will.
- The nominee merely acts as the trustee. In some instances, the nominee and the beneficiary of the will is the same person.
- At all times, the provisions of the will prevail over the nomination.
- It is advisable to have the same person as the nominee and the beneficiary of the will, so as to prevent future disputes.
A nomination, in order to be effective, need not be executed as a will but must be in accordance with the formalities required by the particular provision applicable.
ATTESTATION OF A WILL
- The testator shall sign or shall affix his mark to the will, or some other person shall sign it in his presence and by his direction.
- The signature or mark of the testator, or the signature of the person signing shall appear clearly and should be legible. It should appear in the manner that is appropriate and makes the will legal.
- The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen other person sign the will, in the presence and by the direction of the testator, or has received from the testator.
- Personal acknowledgement of his signature or mark, or of the signature of such other person. Each of the witnesses shall sign the will in the presence of the testator.
- Each of the witnesses shall sign the will in the presence of the testator, but it should not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
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. A probate is to be treated as conclusive evidence of the genuineness of a will.
- 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.
PROCEDURE FOR REGISTRATTION :
- 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.
- Signature of registrar : The endorsement of the register is sufficient to prove the execution of the will, if at all the testators of the will are dead and if the testator affirms the contents of the will and put his thumb impression on the endorsement in the presence of the sub-registrar, the sub-registrar could also be considered to be an attesting witness.
- Stamping of will : A will or codicil is not requires to be stamped at all.
FORMS & FORMALITIES TO MAKE A WILL
- 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.
- No technical words need to be used in a Will.
- 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 need not be made on stamp paper.
- 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.
- However, according to Hindu Law, a witness can be a legatee. Under Parsi and Christian law, a witness cannot be an executor or legatee.
- A Muslim is not required to have his Will attested if it is in writing.
- Under section 18 of the Registration Act the registration of a will is not compulsory.
- It is strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity.
- 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.
- It shall be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate.
- The cover should be super scribed with the name of the testator or his agent with a statement of the nature of the document.