• LAWGIC STRATUM

WILL AND PROCEDURE FOR EXECUTION OF WILL

Author: Mohana Priya R



INTRODUCTION:


A will is a legal document, which declares the testator’s wish regarding the disposition of their assets and care of minor children. A will covers all the belonging of the testators, such as bank balances, property, a prized possession, etc. If the testator wishes to leave all the assets to an institution, a will can assure the wishes are satisfied.


The Indian Succession Act, 1925 defines a will, “the legal declaration of the intention of a testator concerning his property which he desires to be cared into effect after his death[1].


A will involves a maker, recipients, and an executor whose duty is to execute a will of the testator after his death, and directs how it is to be distributed. Under Sec.18 of the Registration Act[2], registration of will is not compulsory. In Narain Singh Vs Kamala Devi[3], the Supreme Court held that in non-registration of a will, an inference cannot be drawn against the genuineness of the will. But it is advisable as it provides strong legal evidence about the validity of the will.


KINDS OF WILL:

  • Privileged will – Sec.65 of the Act deals with the execution of privileged/oral wills, which does not apply to Hindus. It is used by a soldier employed in actual warfare or an airman or a mariner.[4]

  • Unprivileged will – Sec.63 of the act relates to the execution of the unprivileged will. The testator should sign or affix his mark to the will. In the case of a representative, his sign or mark should be made on the testator’s presence and direction. It reveals the clear intention of the testator to give effect to the will. The will must be attested by two or more witnesses, who have seen the testator’s sign/mark to the will. The witness should not be a beneficiary of the will, and they shall sign the will in the presence of the testator[5].

  • Conditional/Contingent will – A will is valid only in the event of the happening of certain conditions or contingencies. If any failure in the condition, then the will is invalid.

  • Joint will – Two or more people agreed to make a conjoint will, which will take effect only after the death of all the testators.

  • Concurrent wills – A will be written by one person, where two or more will provide instruction for disposal of properties. For example, one will deal with the disposal of immovable assets, and the other will for movable assets.

  • Mutual will – The testators will execute a mutual will to pass on all the benefits to other persons/organizations.

  • Duplicate will – It is created for the sake of safekeeping with the bank, executor, or trustee. If the testator destroys the will, then the another will is also considered revoked.

  • Sham will – Sham will is executed but held invalid because, as per the Indian Succession Act, a will made by fraud or coercion is invalid.

  • Holograph will – The testator writes the will in his handwriting.


MAKING OF WILL:

  • A person being major and of sound mind is legally competent to execute a will to dispose of their properties.

  • The document should specify that it is the “last will and testament executed by the testator” along with details like a list of property owned by the testator attested by two or more witnesses.

  • The name, age, the residence of the executor, and his relationship with the testator should be mentioned in the will.

  • The details of the person to whom the property is being bequeathed, and it is necessary to specify the statements are of “free will and sound state of mind.

  • A schedule should contain survey numbers, boundaries, type of lands, and the person to whom it is bequeathed. It involves both movable and immovable assets.

  • The testator’s signature along with the date and place of execution of the will must be specified. A declaration should be given by the testator that they revoke all earlier wills if any.

  • A will can be revoked by the execution of the new will by the testator.


EXECUTION OF WILL:


The execution is carried out by the executor appointed by the testator for the distribution of property after their death. The executor will apply for probate of the will before a competent court. Probate is treated as conclusive evidence, by getting the certificate from the court declaring the genuineness of the will, executor, and the document as approved by law. According to sec.57 of the act[6], the wills and the codicils made by any Hindus, Sikhs, Jains, Buddhists concerning immovable property outside the particular territory, probate should be applied before a competent court. Following are the procedure for applying probate petition:

  • The probate petition should be filed with details, schedule of properties, and parties mentioned in the will, which should be annexed with the petition for the perusal of the court.

  • The District Court or the High Court, where the property is situated with ordinary original jurisdiction can be the competent court.

  • It should be prayed that the petitioner should be declared by the court having rights as an executor to distribute the property according to the intent of the testator.


RESTRICTION ON A WILL:

  • Sec.113 of the Indian Succession Act[7], deals with a bequest made to the unborn person, at the time of thetestator’s death is void. In Sopher Vs Administrative General of Bengal[8], grandfather made a bequest to his unborn grandson. The court upheld the transfer to the unborn. The vested interest is transferred to the grandson when he was born, and the enjoyment of possession is postponed till the child attained the age of 21 years.

  • Sec.114[9] of the act provides that no bequest is valid, where the vesting of interest may be delayed beyond the lifetime of one or more persons living at the testator’s death. The rule against perpetuity provides that the property cannot be tied for an indefinite period.

  • Sec.115[10] of the Indian Succession Act deals with the bequest made to a class of persons of whom it is inoperative by the provision of sec.113 of sec.114 of the act.


CONCLUSION:


A registered will is more in approval than an unregistered will, though the latter is perfectly valid. The former is more effective in a contest before the court of law. It is considered to be on the safer side that the will is drafted by the lawyer according to his client’s intent, especially when a huge amount of property is involved. Making a will is the only remedy to be sure that the asset of the testator goes to the person he wishes.


References:

[1]https://indiankanoon.org/doc/1450343/ Indian Succession Act, 1925. [2]https://indiankanoon.org/doc/1632042/ , Section 18 of Registration Act. [3]https://indiankanoon.org/doc/1996049/Narain Singh Vs Kamala Devi [4]https://indiankanoon.org/doc/1951203/ Section 65 of Indian Succession Act [5]https://indiankanoon.org/doc/1673132/ , Section 63 Of Indian Succession Act [6]https://www.mondaq.com/india/wills-intestacy-estate-planning/888066/probate-letter-of-administration-and-succession-certificates [7]https://indiankanoon.org/doc/1808900/ ,Sec.113 of the Indian Succession Act [8]https://indiankanoon.org/doc/995074/ ,Sopher Vs Administrative General of Bengal [9]https://indiankanoon.org/doc/346893/ , Section 114 of ISA [10]https://indiankanoon.org/doc/298673/ ,Section 115 of ISA

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