According to Section 2(b) of the Indian Succession act, 1925 ‘Will’ means the legal disposal of the intention of the testator with respect to his property which he desires to be carried in to effect after his death.Essential Elements Of A Will:
1) A will must be intended to come into effect after the death of the testator.
2) A will is revocable by the testator at any time.
3)Wills generally are made for disposition of property, but, they can also be made for creating Trusts and for appointing executors.
4) Wills can also be made for appointing a guardian for minor children.
Difference Between Will And Bequest: Will maybe made both in respect of movable and immovable properties of the testator. Whereas a bequest is made in respect of movable properties only such as cash, Gold, Library Books, Machinery not attached to the earth, share certificates, debentures, household articles etc.
The inherent reason behind making a will is to maintain good family relations among the members of his family, to help needy friends, faithful servants and for promotion of charitable purposes such as donations through Will to Orphanages, Schools and Temples etc.The Wills Made By The Following Persons are Not Invalid
1) A will made by a drunkard is not invalid if the will is made during his non intoxication time period of the drunkard to alcohol.
2) A will made by a person of unsound mind is not invalid if the will is made during his lucid intervals or during his sane periods..
3) Handicapped persons such as Blind, deaf, dumb or otherwise handicapped nay also make a valid will, if they understand the legal implications of making a will.
4) very old also is not cause for holding a will as invalid if such old person in advanced age knows the real implications of making a will.
Registration Of A Will: Registration confers greater validity although it is not compulsory under Registration law. and anyone after the testator’s death obtain a copy of th will and if the will is uncontested may easily obtain the properties mutated in the legal heirs names. But a will shall never be attested by professional witnesses who are always present in the corridors of Sub Registrar’s Office.
The following persons are exempt from appearing before the Sub Registrar’s Office.
1) A person in Jail.
2) A Muslim Pardanashin lady.
3) A person by reason of bodily infirmity is unable to appear before the Sub-registrar’s Office.
Stamp Duty and Registration Charges: No Stamp Duty need be paid but registration charges which differ from State to State need be paid.
In Daulat Ram vs. Smt Jai Dai (AIR 1965 Punj 370: it was held that: “The registration of a document merely shows that the document was duly presented by the person authorized to do so and has received due publicity by the process of registration. Its execution having been established by the registering authority. The wider questions about the disposing mind of the testator or the power of the testator to make a will or his capacity are all matters for consideration by appropriate courts either in probate proceedings or in Civil Suit”
Wills And Inheritance: Thew Indian Succession Act 1925 applies to all persons in India except Hindus, Sikhs, Jains, Buddhists and Muslims. However the Act applies in part to Hindus, Sikhs, Jains. and Buddhists subject to the limitations contained in Schedule III thereof. In part VI of the Indian Succession Act 1925, relates to Law Of Wills. Thew provisions of Part VI which apply to Hindus, Sikhs, Buddhists, and Jains are enumerated in Schedule II of the Act. The Provisions of Indian Succession Act do not apply to Muslims.
Muslim Law and Wills: Muslims are governed by their personal laws. Under personal law of Muslims only 1/3 rd of their net assets can be bequeathed/devised. We would get net assets after meeting the funeral expenses of the testator. If legal heirs consent, entire property of the testator can be willed out after meeting his funeral expense
Kinds Of Wills: Privileged And Unprivileged Wills:
Privileged Wills: Those wills that are executed by a Soldier during his engagement in an actual warfare or an Airman so engaged in war or a mariner being at sea. They can pronounce orally before two witnesses. A privileged will may also be written by the testator with his own hand even without his signature or attestation. He can give oral instructions to two witnesses regarding will.If these oral instructions are reduced into writing but the testator died before the will could be prepared and executed such instructions can be considered to constitute his will . If half the writing is in Soldiers hand and the remaining half is in some third person’s hand, the soldiers signature is necessary, but, attestation is not necessary.
Unprivileged Wills: Means Wills that are applicable to persons other than Defense Personnel at War.
A Conditional or Contingent Will is contrary to law and therefore invalid.
Codicil: According to Section 2(b) of Indian Succession
act 1925, codicil means an instrument made in relation to a Will and explaining, altering or adding to its Dispositions and shall be deemed to be part of Will. Accordingly a Codicil has to be executed and attested just as a Will(Section 64 of Indian Succession Act).
Revocation Of Will: Until the testator’s death a Will is always revocable. It can be revoked either through voluntary destruction or by writing Codicil or another Will or by Marriage. But revocation of will on marriage is not applicable to Hindus, Sikhs, Buddhists and Jains.( Proviso to Section 50 Of Indian Succession Act read with section 70 Sch III, para 4 contains relevant provisions relating to revocation of Wills)
The Supreme Court in A.B. Ghose vs. Smt O.L.B Desai AIR 1955 SC566 held that “To prove that the Will written by the testator is revoked it has to be shown that the testator has written another Will, Codicil or declared his intentions in writing revoking his original Will. Section 70 says that the revocation of a Will can also be proved by burning, tearing or destroying the Will by the testator or some other person under his directions clearly indicating his intentions to revoke the Will.
When The Will Is Misplaced Or Lost: This answer can be found in the Judgement of the Supreme Court in Durga Prashad vs. Debi Charan Nair 1979, SC 145 Held: “When there is no obvious reason or clear motive for the testator to revoke the Will and yet the Will is not found on the death of the testator, it may well be that the Will was misplaced or lost or was stolen by interested persons”.
Section 27 of the Indian Succession act says that ” The onus lies on the objector to prove the various circumstances i.e.,, mus-carriage, burning, tearing or destructr5iuon of the Will.
Where other person assists the testator in putting his signature to the Will, even then the testator’s signature is valid(A.K.Bose vs. Naresh 1938(42) Calcutta weekly notes 649), Parkar vs. Felgate(1883) 8 PD 171
Signature of testator in Proxy-Effect- A proxy may either sign the testator’s name or his own name Dasu Reddy vs., Venkata Subbammal (AIR 1934 Mad 436). However, the proxy must sign in the presence, authority and direction of the testator-Ramanamma Vs vs. Viramma 61 MLJ 94 (PC)
Contents Of a Will:
a) Commencement of a Will
b) Name and Address of the testator
c) Necessity if any, for the execution of the Will
d) Details of testators relatives and others who are entitled to his properties and for whom the bequests are proposed to be made
e) Appointment of Executors and Trustees
f Details of legacy in clear language
g) Rule of Law shall be followed. Sections 112 to 118 of the Indian Easements Act 1925, which relate to rule against perpetuity must be followed carefully. For e.g A will can confer or bequeath the property covered under the Will during the life times of all the testators contemporaries one after the other and a chid in the womb till he attains majority or 18 years is valid and in conformity with the rule of law against perpetuity.
h) Schedule of properties bequeathed.
i)Attestation of a Will by minimum by 2 witnesses.
j) The provisions relating to bequest and Trust created by the Will to be complete.
k) The testator’s intention should be definite and expressive. Otherwise it becomes void for uncertainty
Signature Of Testator: Section 63 of the Indian Succession Act prescribes the following /Rules:
a) The testator shall sign or affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
b) The signature of the testator or hiss mark or signature of the person signing for the testator be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
3) The Will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark. for the Will or some other person sign the Will. in the presence and by the testator or has received from the testator a personal acknowledgement of his signature or mark or of the signature of such other person; and by the. Directions of the testator; and each of the witness shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one be present at the same time, and no particular form of attestation shall be necessary. It is desirable that the testator puts his signature on all th pages of the Will in stead of just his initials.
According to Section 68 of the Indian Evidence Act, execution of the Will needs to be proved at least by one attesting witness. It has to be proved as any other document as per Indian Evidence Act.
Proof Of Wills: It is settled law that the propounder shall satisfy the court that the Will was executed by the testator while he was physically and mentally fit. If the otherside creates suspicion in the mind of the court, it is for the propounder of the will to remove such suspicion and prove to the court that the testator executed the Will with full competency and understanding.
According to Section 67 of the Indian Evidence Act if the signature of the testator is under doubt, then the signature of the said person must be proved to be in his hand writing and for proving such handwriting under Sections 45 to 47 of the Evidence Act, the opinion of the handwriting experts and also of the persons who are acquainted with the handwriting of the testator are necessary and relevant.
Sections 59 to 63 of Indian Succession Act state as to the testator being a major(completed 18 years) and of Sound Mind and the testator shall sign or affix his mark and attested by two or more witnesses etc.
Indian Court also have no suspicion or doubt regarding the genuineness of a testators signature even if it is shaky
In Shankar Reddy vs. Mahalakshmamma AIR 1922 PC 315 it was held: “If a man sets himself to commit forgery, he would definitely make the signature as exactly like the genuine signature as he could and certainly would not introduce shakiness into the signature.
A document Writer could also attest a Will if he doesn’t take any benefit out of the Will. A practicing Doctor/Family Doctor also could be an attesting witness and it is desirable that above his attestation he puts the wording that the testator is of sound mind. The attesting witness or his spouse must not be beneficiary under the Will, as otherwise the bequest in their favour would be invalid and the rest of the bequests in favour of the other persons/members of testators family etc remain unaffected
A Will is most solemn document. It is also a sacred one as by it a dead man entrusts to the living the carrying out of his wishes and desire Ramgopal Lal vs. Alpina Kumar 49 IA 413(417). The preparation of a will is an intelligent work on the part of a Draftsman. He should be well conversant with Laws relating to Real Property and the provisions of Part-VI, Sections 57 to 120 of the Indian Succession Act and also Hindu Succession act, Hindu Adoptions and Maintenance Act before drafting the Will.
Probate: Probate of a Will can be granted only to a person not being a minor or a lunatic, but, not to any association unless it satisfies the conditions prescribed by the rules made by the State Government., Probate or Letters of Administration can be granted to Banaras Hindu University. Probate once granted authenticates the Will against the world. It is a complete answer to the challenge of the authority of the executor as regards his dealing with the estate of the deceased in due course of administration.
Application to revoke probate or letters of Administration is to be treated as miscellaneous application and not a suit and can be disposed of summarily or after giving an opportunity to both the parties to adduce evidence and consideration thereof. If it is treated as a suit the applicant cannot prove the Will and at the same time cannot contend that the /Will was not validly executed.. (Nalini Navin Vs. Chanbdravadan AIR 1997 SC 1055)
To whom Probate or Letters of Administration may be granted- Probate can be granted only to an executor appointed by the Will.(Section 222). When several executors are appointed by the Will, probate may be granted to them all simultaneously or at different times(Sec 224). Where no executor has been appointed in a Will, a Universal legatee or residuary legatee may obtain Letters Of Administration.(Sec 232) Probate or Letters of Administration cannot be granted to a minor or a person of unsound Mind or to an association of individuals unless it is a company satisfying the conditions prescribed by the rules to be made by the State Government in this behalf.(SS 223, 236). Where a minor is sole executor or sole residuary legatee letters of administration may be granted to the legal guardian or to such other persons as the court thinks fit till the attainment of majority(Sec 244). Letters of Administration may be granted to an heir or heirs in case of intestacy of a Hindu, Muslim, Buddhists, Sikhs and Jains or exempted persons(Sec 3 and Section 218). People have fair knowledge of Will, which is defined in Indian Succession Act 1925 as “The legal declaration of intention of the testator, with respect to his property, which he desires to be carried into effect after his death. Testator means the owner of the property who makes the Will. The intentions of testator as to how his properties are to be succeeded are detailed in a Will.
The development of properties as directed in the Will takes place after the death of testator, otherwise called as author of Will. The Testator may also appoint some person to carry out the directions and his requests in the Will. Such a person is called executor. If the testator does not appoint any executor the competent authority, the court may appoint a person to administer the estate of the testator, who is called as administrator. The persons who are entitled to the benefits under the Will are called Legatees.
Probate is defined in Indian Succession Act, as “a copy of Will certified under the seal of a court of competent Jurisdiction with grant of administration to the estate of testator”. This is the official proof of the Will. Application for probate have to filed under section 222, and 276 of Indian Succession Act to probate division of High Court. The Petition for grant of probate shall also be verified by at least one of the witnesses to the will if procurable. However, this condition is recommendatory and not mandatory.
Probate will be issued only to the executor appointed in the Will. If there is no provision for appointment of executor in the Will, the court will grant only letter of administration. The Will is considered to be a genuine one after the probate is granted by probate division of High Court. It binds not only the persons, who are the parties, but also others, who are not parties to the probate proceedings.
Probate will not be granted to minors, persons of unsound mind, to any association of Individuals unless it is a company, which satisfies the rules, conditions prescribed and published in official gazette by the State Government.
When the Will is proved, the original is to be deposited in the registry of court. The court will issue a copy of the Will with a certificate of having it made out under the seal of the court. This copy issued to the executor is called probate.
If a codicil is discovered after the grant of probate a separate probate exclusively of such codicil will be granted to the executor provided the discovered codicil does not appoint another executor. Codicil is an addition to the Will, a supplement to the Will. It can be made any time after the Will is made, during the life time of testator.
A codicil contains anything, which the testator wants to add, any explanation, cancellation and even cancellation of the Will. Codicil is part of main Will and needs to execute with the same formalities as that of a Will and must be proved with the Will.
If the testator appoints a different executor in codicil, which is discovered subsequent to grant of probate, the probate of the Will stands cancelled. A new probate of both Will and codicil has to be granted together.
If the Will is lost or misplaced by accident and if a copy of the Will is available the probate may be granted until original Will is produced. If the Will exists and the possessor refuses to give the Will or the possessor is abroad, the court may grant probate on the copy of the draft Will until the original or authenticated Will is produced.
The Probate of the Will is issued in common form, if not disputed and it will be in solemn form if disputed or irregular.
Where probate is required?
There is much confusion as whether all Wills executed by Hindus, Muslims, Christians, Buddhists, Sikhs, Jains, require probate. Section 57 and read with section 213 of Indian Succession Act clears this confusion. Both the sections are reproduced along side.
Thus the obtaining of probate, and letters of administration are mandatory to establish the right as executor or legatee. But the application of the sections is restricted. Act specifically exempts Mohammedans and Indian Christians. Indian Christians means a native of India, who is or in good faith claims to be of unmixed Asiatic descent and who professes any form of Christian religion
In case of Hindus, Buddhists, Jains, Sikhs the provision is applicable only to the Wills made after 01.09.1870 within the territories which at said date were subject to the lieutenant governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Madras or Bombay and to the Wills made outside those territories, if the immovable properties referred in the Will falls within those territories.
Provision is not applicable to Wills made by Hindus, Buddhists, Sikhs, Jains outside these territories or if the immovable properties referred in will are situated outside these territories. Probate of Will is must in Madras, Bombay and Calcutta. In moffusal areas it is optional.
The obtainment of probate is also applicable to Parsis, if the Wills are made by parties dying after the commencement of Indian Succession Act, within the local limits of ordinary original Civil Jurisdiction of High Courts, of Calcutta, Madras, and Bombay or if the immovable properties referred in Will are situated in those territories.
As stated earlier, the probate will be granted only to the executor appointed in the Will. Such appointment may be expressed or by necessary implication. Suppose if the Will narrates that Mr. Krishna shall be the executor, if Rama does not, Rama shall be the executor. If several executors are appointed, the court may grant probate to all the them simultaneously or if it is not possible to grant probate simultaneously it may be granted at different times.
In case where probate is granted to several executors and if any one of them dies, the full representation of testator rests on the surviving executors. If the executor appointed, renounces or does not accepts to be executor within the time limited for acceptance, the Will may be proved and letters of administration with a copy of the Will annexed may be granted to person, who would be entitled to administration.
Death of Executor
The Act provides for various contingencies. If the testator who has made the Will.
(A) Does not appoint an executor.
(B) Or the appointed executor is legally incapable to act or executor died before the Will is proved.
(C) Or has died after having proved the Will but before carrying out the directions of the testator.
The court may admit a universal or residuary legatee to prove the Will and letters of administration may be granted to him.
If the author of the Will bequeaths all his properties to a single person, such a person is called universal legatee. After paying all debts, charges and development to legatees, as per the Will anything that remains is called residue.
The testator may bestow such residue to a particular person who is called residuary legatee. In certain cases the residuary legatee may die before the properties of the testator are devolved as per Will. The representative of the residuary legatee has the same right to administration as that of a residuary legatee.
The executor may be appointed for any limited purpose; the relevant probate shall also be for such limited purpose.
Revocation of Probate:
The grant of probate may be revoked on the following grounds:
The proceedings to obtain the grant were defective in substance.
The grant was obtained by fraud, by making false suggestions.
The grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently.
The grant has become useless and inoperative through circumstances.
The person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with prescribed law or exhibited inventory of account which is untrue in material respects.
District Judges also have Jurisdiction to grant and revoke probates in all cases within his district.
Indian Succession Act 1925
Application of certain provisions of part to a class of Wills made by Hindus, etc. – the provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein apply:
(A) To all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of September 1870.
Within the territories which at the said date were subject to the Lieutenant-Governor of Bengal
Within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay;
(B) To all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits;
(C) To all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b): Provided that marriage shall not revoke any such Will or codicil.
Right as executor or legatee when established:-
1). No right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed
2. This section shall not apply in the case of Wills made by Mohammedans (or Indian Christians), and shall apply:
(i) In the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57;
(ii) And in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Will are made outside those limits, insofar as they relate to immovable property situate within those limits.
Probate Not Required:
Wills made by:
2. Indian Christians.
3. Hindus, Buddhists, Sikhs, Jains.
A. Outside the territories of Lieutenant Governor of Bengal as on 01/09/1870.
B. Outside the local limits of ordinary original civil jurisdiction of High Court of Madras, Bombay.
C. Wills in respect of immovable properties outside the above limits.
Parsis Dying after the commencement of India Succession Act 1962 and Wills made outside the local ordinary original civil jurisdiction of High Courts at Calcutta, Madras, Bombay.
Will in respect of immovable properties situated outside the above limits.
I’d recommend abolishing the requirement of obtainment of Probate for all Wills related provisions and make non applicability of probate requirement equal to all parts of India as discrimination in relation to obtainment of Probate for Presidency Towns of Mumbai, Kolkata and Madras in respect of Wills made relating to immovable properties situate within these Cities/towns limits and also applying requirement of probate in respect of Wills made outside these limits if the immovable properties in question are situate within the Presidency towns of Mumbai, Madras and Kolkatta as it hits Article 14 (Right to Equality) asd clearly there is a discrimination between persons who made wills in these towns in respect of their immovable property within these cities limits or who made wills out side these jurisdictions in respect of properties situate within these jurisdictions and those who don’t fall within the above jurisdictions there is absolutely no requirement of probate. For Moffasals outside these jurisdictions there is no requirement of Probate.The Law should be uniform throughout India and for all religions and regions. Hence I advocate bringing in a Uniform Civil Code as envisaged in Art. 44(Part IV) of The Constitution Of India so that for one and all requirement of probate is altogether done away with. Our Preamble enshrines secular democracy, hence we should live unto the true spirit of secular democracy by doing away with Probate henceforth in India