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IMPORTANCE OF A “WILL” AND ISSUES RELATING THERETO

IMPORTANCE OF A “WILL” AND ISSUES RELATING THERETO. RAHUL CHITNIS, ADVOCATE.

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IMPORTANCE OF A “WILL” AND ISSUES RELATING THERETO

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  1. IMPORTANCE OF A “WILL” AND ISSUES RELATING THERETO RAHUL CHITNIS, ADVOCATE

  2. The expression ‘will’ is defined under Section 2(a) of the Indian Succession Act, 1925, as the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death.

  3. Testamentary documents are of two types: • a testament or will • codicil.

  4. PRIVILEGED WILL Allowed to be made by a soldier or an airman or a mariner engaged on an expedition or in actual warfare and it enjoys certain privileges namely: • it may be made in writing or orally, • if it is written by the testator himself, it need not be signed by him or attested, • if it is written wholly or partly by another it must be signed by the testator but need not be attested by any witness,

  5. even if a will mentioned above is not signed by him it would be valid if it is written by his discretion or it is recognized by him as his will, • even otherwise also an instrument not signed, will be valid, if the non-execution can be reasonably ascribed to some cause over the abandonment of the testamentary intention expressed in the instrument, • even written instruments would constitute a valid privilege will,

  6. even by verbal instruction given by such a testator are written down in his lifetime, such written instructions would constitute a privileged will even if he dies without signing the same and although they have neither been reduced into writing in his presence nor read over to him, • oral will must be read in the presence of two witnesses but it would be invalid after one month from his ceasing to be entitled to make a privileged will.

  7. UNPRIVILEGED WILL Can be made by any person who has attained majority and who is not of unsound mind or who, in spite of illness or other cause, is in such a state of mind as to be in a position to know what he is doing (section 59 of the Succession Act, 1925).

  8. The testator also must have the power of disposition over the property which he proposes to dispose of in the will.

  9. It can be made even by a deaf or a dumb person or even by a person suffering from cancer. • The will must be in writing except in case of Mohammedans, who under their personal laws can make an oral will.

  10. The other essential requirements of a valid unprivileged will are: • it must be signed or marked by the testator or signed by some other person in the presence and the direction of the testator, • the signature or mark must be made at such place of the document that it must appear that it was it was intended thereby to give effect to the writing as a will.

  11. Therefore, the signature can appear to be made: • on the top of the will, • at the end of the will, • in the testatum clause, • in the right hand margin of the will, • even in the envelope containing the unsigned will,

  12. the signature or the mark of the testator must be attested by at least two witnesses who must have seen the testator or some other person as aforesaid signing or putting his mark and have put their signature in his presence and at his direction or the testator must have acknowledged his signature or mark or of the other person and the witness must sign in the presence of the testator.

  13. It is not necessary that the two witnesses must be present at the same time. • This paper will refer to unprivileged wills unless specifically mentioned otherwise.

  14. EXECUTION AND ATTESTION OF A WILL • There are four conditions for a valid attestation namely: • attestation must be by two witness at least where it is so required, • the witness must sign in the presence of the executants, • they must sign at the direction of the executants, • the signature of the executants should be either made in the presence of the witness or if earlier made it should be admitted or acknowledged by the executants to the witnesses.

  15. A codicil must be attested in the same way as the will. • All the requirements of a codicil is same as that of a will.

  16. REVOCATION OF A WILL • As regards the revocation of the will, section 70 of the Succession Act provides that no unprivileged will or codicil or any part thereof shall be revoked other than by marriage or by another will or codicil or by some writing, giving instructions to revoke the same and executed in the same manner in which an unprivileged will is required to be executed or by burning or tearing or otherwise destroying the same by the testator or by any other person in his presence or by his direction with the intention of revoking.

  17. A will is always revocable only during the life of the testator, though the will is stated to be irrevocable.

  18. ALTERATION IN A WILL • Section 71 of the Succession Act provides that no obliteration or other alteration made in any unprivileged will after execution thereof shall have any effect, except so far as the words or the meaning of the will have been thereby rendered illegal or indiscernible unless such alteration has been executed in the like manner as required for the execution of the will.

  19. FORMS OF A WILL • An unprivileged will can be in different nomenclatures, such as: • Oral will • Hollograph will • Mutual will • Joint will • Contingent will

  20. REGISTRATION OF A WILL • A will can be written and executed on any piece of paper. It may be handwritten or typed. It does not require any stamp duty and it is not required to be registered even if it relates to immovable property. • Registration of a will is optional (section 18(e) of the Registration Act). • Registration does not give any special sanctity or authenticity to the will through the registration of the will by the testator himself may prima facie show the genuineness of the will. • Whether registered or not, a will must be proved as duly and validly executed as required by the Succession Act.

  21. The Supreme Court of India has held that in a case where a will is registered and the sub registrar certifies that the same has been read over to the executants who on doing so admitted the contents, the fact that the witnesses to the documents are interested, looses significance. • A High Court has observed that it is well settled that once a will is registered there is a presumption of its genuineness until and unless there are very strong reasons which create doubt about its execution.

  22. SUBJECT MATTER OF A WILL • By a will a person can dispose of or deal with any property movable or immovable over which he has a disposing power, that is to say any property which as beneficial owner he can transfer inter vivosduring his lifetime.

  23. No person can make a binding disposition of its own dead body so as to oust the executor’s or heir’s right to the custody and possession of it and their duties relating to disposal of it.

  24. FORM OF A WILL • A will has no standard form but generally the contents of the will fall under the following heads: • name, age, address, occupation and community of the testator, • clause revoking all previous wills and other testamentary documents, • clause appointing executors (there being no maximum limit prescribed under Indian Law),

  25. clause mentioning specific bequests followed by two clauses (a) one containing the general bequest and (b) the second containing the residuary bequest. • The last one is very necessary otherwise if any property is not generally or specifically dealt with, the testator may be considered as having died intestate in respect thereof,

  26. a clause is also inserted stating that the testator is in sound health and proper state of understanding, though that clause has not much value • the last clause is about testimonium and attestation, • Date of the will can be given in the beginning or at the end, the latter being the standard practice.

  27. DRAFTING A WILL • While drafting a will the provisions of the Indian Succession Act, 1925, and in particular, Sections 74 to 111 should be borne in mind. • Before drafting a will the person drafting the will should take full instructions as to the intentions of the testators and such instructions should as far as possible be taken from the testator himself. • The person drafting the will should not take instruction from any other person unless he/she is fully satisfied of the bona fides of such a person or that such person is duly authorized to give instruction by the testator.

  28. PRESERVATION OF A WILL • There are three ways in which the original will can be dealt with the testator to prevent it from being destroyed or tampered with by any interested party: • he can keep it in a sealed cover with himself or person of his confidence or in a safe deposit vault with any bank, the last being safer, • he can register the will with the Registrar or Sub-Registrar of Assurance under Section 40 of the Registration Act. Under this section a will can be registered even after the death of the testator by the executor or any other person claiming under the will provided the Registrar and the Sub-Registrar is satisfied as to the bona-fides of the document and its execution. The disadvantage of this registration is that the document may become accessible to any person for the knowledge of its contents and which knowledge may be misused.

  29. the third way is provided by section 42 of the Registration Act, under which the testator or his authorized person can deposit the will in a sealed cover with the Registering officer as in the section provided. • When so provided the Registering Officer will make of it and keep the envelope in a fire proof box. • Such a will can be withdrawn by the testator if he so desires at any time on application under section 44 of the Registration Act.

  30. CONSTRUCTION OF A WILL • Initial onus is on the propounder to prove execution of the will thereafter it shifts to the party alleging undue influence, coercion in execution of the will to establish its case. • The onus on the propounder can be discharged on adducing satisfactory evidence that the will was signed by the testator who was at the time of sound mind and disposing state of mind, that he understood the nature and effect of the disposition and signed it on his own will.

  31. PROBATE, LETTERS OF ADMINISTRATION AND SUCCESSION CERTIFICATE • Section 57 of the Indian Succession Act, 1925, states that no right as an executor or legatee can be established in the court of justice unless a court of competent jurisdiction shall have granted to the probate of a will.

  32. A combined reading of Section 213 and Section 57 of the Act where the parties to the will are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application.

  33. As a consequence, any will made by Hindu, Buddhist, Jain or Sikh person in the erstwhile State of Mumbai (within the original jurisdiction of the High Court of Mumbai) will not be required to be probated in respect of a will made outside those territories or regarding the immovable property outside those territories.

  34. Under Section 222 of the Succession Act, Probate can be granted only to the Executor appointed under the Will. • In a Petition for probate, aspect of title to the property cannot be looked into. What is to be looked into, is the due execution and attestation of the Will.

  35. Under Section 224 of the Succession Act, when there are several executors, Probate may be granted to them simultaneously or at different times.

  36. Section 227 of the Succession Act provides that a Probate of the will, when granted, establishes the will from the death of the testator and renders valid all intermediate acts of the executor.

  37. If the Executor renounces his executorship, then letters of administration can be granted, as provided under Section 229 of the Succession Act.

  38. If the Executor fails to refuses to act within time, then in such circumstances, the Will can be proved and Letters of Administration can be issued with a copy of the Will annexed, as provided for under Section 232 of the Succession Act.

  39. When the deceased has made a will, but has not appointed an Executor or the deceased has appointed an Executor who is legally incapable or refuses to act or who has died before the testator or before he proves his will or an Executor dies after having proved the will, but before he administers all the estate of the deceased, then in such an eventuality, under Section 232 of the Succession Act, the Letters of Adminstration can be granted to the Residuary Legatee.

  40. A Succession Certificate can be granted only in respect of Debts and Securities under Section 370 of the Succession Act. • Securities are defined in Section 370(2) of the Succession Act. • Debts are not defined under the Succession Act or the General Clauses Act, hence it has to be understood by its ordinary meaning.

  41. A Succession Certificate can be granted essentially when: • the grant of probate or Letters of Administration is not compulsory under Sec 212 or 213 of the Succession Act, • the deceased is Indian Christian, • the deceased is a Muslim, • the deceased is Hindu, has left a Will and probate not compulsory under Sec 57 of the Succession Act.

  42. An existence of a Will does not act as a bar to apply for a Succession Certificate in view of Section 387 of the Succession Act. • An application for Succession Certificate can be made only before District Judge, in view of Sec. 57 of the Succession Act.

  43. NOMINATION • There is another species of a testamentary document called a nomination. • Many statutory and public corporations or Government Department such as Life Insurance Corporation, Post Office, Unit Trust, provide for making the nomination for a person who takes either a life policy or any other securities whereby it is provided that on the death of the person or the amount or securities will belong to the nominee, generally it is the nature of the will, restricted to each item of security.

  44. A nomination is in its nature testamentary, as the death of the nominee in the lifetime of the nominator defeats the nomination. Such 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 provisions applicable.

  45. If the testator in accordance with the statutory power has nominated a person to receive a particular sum on his death that sum cannot, it seems, be disposed of by his ‘will’ except where under the terms of the relevant statutory provision and in the circumstances of the case the will constitute an effectual revocation of the nomination.

  46. The Bombay High Court has held that: “Even when a person is nominated or even when a person is recognized as an heir or a legal representative of the deceased member, the rights of the persons who are entitled to the estate or the interest of the deceased member by the virtue of law governing succession are not lost and the nominee or the heir or the legal representative recognised by the society, as the case may be, holds the share and interest of the deceased for disposal of the same in accordance with law. It is only as between the society and the nominee or legal heir or legal representative that the relationship of the society and its members is created and this relationship continues and subsists only till the estate is administered either by the person entitled to administer the same by the court or the rights of the heirs or persons entitled to the estate are decided in a court of law.”

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