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One wants to make sure that the life he has
led has been meaningful and dignified in all aspects. A person,
who owns property in any form, is definitely concerned about
his property after his demise. 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:
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According
to the respective law of succession, when no will is made-
i.e.intestate |
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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.
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.
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The Indian
Succession Act, 1925 |
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Hindu
Personal Laws |
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Muslim
Personal Laws |
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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:
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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.
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Disposition of property: The
declaration should relate to disposition of the property
of the person making the Will.
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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.
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Revocability: The essence of
every Will is that it is revocable during the lifetime
of the testator.
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Persons Competent To Make A Will
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According
to Section 59 of the Indian Succession Act, |
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Any person of sound mind
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Who has reached the age
of majority |
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The following
persons cannot make a will: |
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Lunatics, insane persons.
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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. |
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Points To Remember
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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.
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A person, who is ordinarily insane,
may make a will during an interval while he is of sound
mind.
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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.
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Executor Of A Will
An executor is the person appointed ordinarily by the testator's
by his will or codicil
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To administer
testator's property and |
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To carry
into effect the provision of the will |
Codicil
Letter Of Administration
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A certificate
granted by the competent court to an administrator |
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Where there
exists a WILL |
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authorizing him to administer
the estate of the deceased in accordance with the
WILL. |
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where a WILL does not
name any executor, |
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an application can be filed
in the court for grant of Letter of Administration
for the property. |
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And in accordance
with law where the deceased has died intestate. |
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A Probate
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Probate means
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the copy of the will
is given to the executor |
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together with a certificate
granted under the seal of the court |
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and signed, by one of
the registrars, certifying that the will has been
proved |
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The application for probate shall be
made by petition to the court of competent jurisdiction.
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A copy of the last will and testament
of the deceased should be annexed to the petition.
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The copy of the will and the copy of
the grant of administration of the testator's estate
together, form the probate.
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It is conclusive evidence of the validity
and due execution of the will and of the testamentary
capacity of the testator.
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A probate is obtained to authenticate
the validity of the will.
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The probate is still the only proper
evidence of the executor's appointment.
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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.
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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.
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A Succession Certificate
Will & Nomination
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A nomination
is not a will. |
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The nominee
merely acts as the trustee. In some instances, the nominee
and the beneficiary of the will is the same person. |
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At all
times, the provisions of the will prevail over the nomination. |
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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
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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.
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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.
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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.
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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.
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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.
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Execution Of A Will
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On the death of the testator, an executor
of the will or an heir of the deceased testator can
apply for probate.
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The court will ask the other heirs
of the deceased if they have any objections to the will.
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If there are no objections, the court
will grant probate.
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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.
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In case any objections are raised by
any of the heirs, a citation has to be served, calling
upon them to consent.
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This has to be displayed prominently
in the court.
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Thereafter, if no objection is received,
the probate will be granted.
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It is only after this that the will
comes into effect.
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Procedure For Registrattion:
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A Will is to be registered with the
registrar/sub-registrar with a nominal registration
fee.
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The testator must be personally present
at the registrar's office along with witnesses.
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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.
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Stamping of will : A will or codicil
is not requires to be stamped at all.
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Forms & Formalities To Make A Will
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Form of
a Will |
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There is no prescribed
form of a Will. |
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In order for it to be
effective, |
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It needs to be
properly signed and attested. |
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The Will must be
initialed by the testator at the end of every
page and next to any correction and alteration. |
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Language
of a Will |
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A Will can be written
in any language. |
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No technical words need
to be used in a Will. |
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The words
used should be clear and unambiguous so that the
intention of the testator is reflected in his Will. |
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Stamp
Duty |
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No stamp duty is required
to be paid for executing a Will or a codicil. |
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A Will need not be made
on stamp paper. |
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Attestation
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A Will must be attested by two
witnesses who must witness the testator executing
the Will.
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The witnesses should sign in
the presence of each other and in the presence
of the testator.
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However, according to Hindu Law,
a witness can be a legatee. Under Parsi and Christian
law, a witness cannot be an executor or legatee.
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A Muslim is not required to have
his Will attested if it is in writing.
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Registration: |
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Under section 18 of the Registration
Act the registration of a will is not compulsory.
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It is a strong legal evidence
that the proper parties had appeared before the
registering officers and the latter had attested
the same after ascertaining their identity.
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A Will must be proved as duly
and validly executed, as required by the Indian
Succession Act.
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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.
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It shall be released only to
the testator himself or, after his death, to an
authorized person who produces the Death Certificate.
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The cover should be super scribed
with the name of the testator or his agent with
a statement of the nature of the document.
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An amount of Rs. 1,000/- will
be charged as fee. The deposited cover may be
withdrawn by the testator or his agent on payment
of prescribed fee of Rs. 200/-.
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