ALL ABOUT "WILL"

 

All about “WILL”

Do you intend to make a WILL? If the answer is “yes”, then you must read this.

Writing a WILL isn’t the most pleasant of tasks. After all, by doing do you are not only acknowledging your own inevitable demise but actively planning for it.

But creating a WILL is the most critical things you can do for your loved ones. Putting your wishes on paper helps your heirs avoid unnecessary hassles, and you gain the peace of mind knowing that a life’s worth of possessions will end up in the right hands.

What is a “WILL”

A WILL is a legal declaration by the testator expressing his intention with respect to his property which he desires to be carried into effect after his death. The maker of the Will expresses his intentions about distribution of his property amongst his sons/daughters/relatives/friends when he is alive, but it will come into effect only after his death.

The person who makes the WILL is called “Testator” and the person who inherits property under a WILL is called the “legatee” or “beneficiary”. Sometimes it is quite common to find the name of a heir or family friend or a family lawyer who will be named as “Executor” in the WILL, and such named executor is given the responsibility to carry out the intentions of the maker of the WILL to minimize the disputes amongst the beneficiaries. He clarifies to the beneficiaries the real intentions of the testator. A WILL can be executed by any person who is not a minor and who is of sound and disposing state of mind. Even a married woman, blind and deaf person can also execute a WILL so long as they are aware of what they are doing.

WILL can be executed in any language and there is no prescribed form for execution of a WILL. It need not be executed on a stamp paper. However certain legal requirements are to be kept in mind while drafting a WILL to make it a valid Will. The language used must be simple and unambiguous and property to be bequeathed must be described accurately. It must be ensured that WILL is initialled / signed by the testator on all pages and last page is signed in full to avoid any controversy as to its contents.

And WILL must be signed by the testator and his signature must be attested by two witnesses. In other words the witnesses should sign in the presence of each other and in the presence of the testator. If there are any corrections in the body of the WILL, it is advisable that such corrections are authenticated by signature, however it is always advisable to avoid cuttings and corrections while writing a WILL.

It is quite usual to find a declaration in the WILL “I have made this Will out of my free will and I am in sound health and in complete understanding of the dispositions, directions and statements made herein”. This kind of declaration conveys that the maker of the WILL is in good health and there is no pressure or compulsion on him when he made the WILL.

Legatees/beneficiaries are often kept in dark about the WILL and disposition of the property. The main reason for such secrecy is that maker of WILL have to face hostile behaviour of the aggrieved legatees when he is alive. We hear some times, the makers of WILL leaving their properties for the benefit of peons or charitable organizations depriving the right to its own sons and daughters who abandon the testator during illness and difficult phase of life.

The Indian succession Act, 1925, applies to WILL’s and it classifies WILL’s into two categories namely privileged WILL’s and unprivileged WILL’s. Privileged WILL’s are those which are executed as per the provisions of Section 63 of the Act. Usually privilege WILL’s are made by soldiers, airmen and mariner engaged in war. In the case of privileged WILL’s some exceptions as to witnesses or signatures of are made. If the WILL is executed in hand writing of the testator, it is enough and need not be signed by the testator or witnessed. They are still considered as valid. If another person writes for soldiers or mariner under their instructions, they are still valid provided they are witnessed and need not be signed

As per Section 17 Registration Act, all instruments involving transfer of immovable property having the value of Rs. 100/- and above must be compulsorily registered, Registration of WILL is not compulsory although it may involve immovable property. But it is desirable and advisable that WILL should be registered as it will lend credibility to the document as genuine and prevents any dispute as to whether the document being the last WILL. The testator and witnesses must be present before the Registrar or Sub Registrar to register the WILL. A nominal fee has to be paid for registration of WILL. The registration of WILL proves that testator and witnesses appeared before the registration authorities and WILL is registered after the identity of the parties is established. The chances of altering or tampering with the document are totally eliminated. And nowadays in some of the states like in Delhi/NCR registration of the WILL is even recorded (audio & video).

What is “PROBATE OF WILL” and why it is required

Let us now understand why probate is necessary, Section 213 of the Indian Succession Act, 1925 provides that an Executor or legatee cannot establish his right under a WILL in any court unless a probate of WILL is obtained. Section 213 is not applicable to WILL executed by Mohammedans.

Probate means copy of the WILL certified under the seal of a court of a competent jurisdiction. In a proceeding for grant of probate or letters of administration, title is not decided and hence such decision of the court can be challenged any time. Probate of a WILL when granted establishes the genuineness of the WILL and the person in whose favour probate is granted will be in a position to convey the title arising out of the WILL.

As per Section 57 of the Indian Succession Act, 1925, a Probate of WILL is necessary in case of WILL’s made by any Hindu, Buddhist, Sikh or Jain where such WILL’s are made in territories subject to the Governor of Bengal or within local limits of ordinary civil jurisdiction of Hon’ble High Courts of Madras and Bombay.

 

Similarly Probate is also necessary, even if the WILL is made outside of those specified territories but immovable properties stated in the WILL are situated in the specified territories namely Bengal, Madras and Bombay. In other words, probate is not necessary when the WILL’s are executed outside the specified territories and both immovable and movable properties are also situated outside the specified territories. In cases where probate is not necessary, legal representative has to obtain succession certificate to collect the debts or securities left by the deceased.

Then what is the difference between a probate and succession certificate.  A probate is issued by the court, when a person dies testate i.e., having made a WILL and the executor or beneficiary applies to the court for grant of probate. In case a person has not made a WILL, his legal heirs will have to apply to the court for grant of a succession certificate which will be given as per applicable laws of inheritance. Probate can be granted only to the executor appointed and named in the WILL.

 

Where the deceased is a Hindu, Muhammadan, Buddhist Sikh or Jain or an exempted person and has died intestate (without leaving a WILL), the court may grant letters of administration of his estate to any person, who according to the rules for the distribution of the estate 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.

 

Letters of administration is also granted to executor/ legatee in the case WILL, which entitles the administrator to all rights belonging to the intestate as effectively as if the administration has been granted at the moment after his death. They however do not render valid any intermediate acts of the administrator causing the damage of the intestate's estate.

 

For obtaining probate/letters of administration, the Executor/beneficiary has to apply to the court. The court on receiving satisfactory proof of valid execution of the WILL issues letter of administration to the beneficiary. The application for probate/Letters of administration has to contain the details such as a) time of the testator's death, b) confirmation to the effect that the WILL was duly executed and annexed as his last WILL and testament of Testator, c) the details of amounts/ assets which are likely to come to the petitioner's hands, and the petitioner is the executor named in the WILL. The court issues notice to the kin of the deceased and also to the General public to file their objections and on being satisfied as to the genuineness of the WILL Court issues probate/ letters of administration.