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A Will is a document which ensures that your wishes with respect to your assets and property are
followed after your death.
There Often arises problems and complications when a person dies without a Will. Yet we put off
making a Will, not realizing the predicament we put our family in, after our death. It's a little effort that
goes a long way. You will find the answers to the questions you may have had on making your Will,
registering it and other relevant information.
Definitions:
A Will is defined as "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." In other words, a Will or a Testament means a
document made by person whereby he disposes of his property, but such disposal comes into effect
only after the death of the testator.
Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and
is deemed to be a part of the Will.
Executor is the legal representative for all purposes of a deceased person (testator) and all the property
of a testator vests in him.
Legatee/Beneficiary is a person who inherits the property under a Will.
Probate is a copy of the Will, certified under the seal of a competent Court.
Testator is a person making a Will and executing it
Essential Characteristics
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.
Disposition of Property: The declaration should relate to disposition of the property of the person
making the Will.
Death of the Testator: The declaration as regards the disposal of the property must be intended to take
effect after his death.
Revocability: The essence of every Will is that it is revocable during the lifetime of the testator. People
capable of making Wills are, Every person who is
not a minor
of sound mind
free from fraud, coercion or undue influence
Form of a Will:
There is no prescribed form of a Will. In order for it to be effective, it needs to be properly signed and
attested. The Will must be initialed by the testator at the end of every page and next to any correction
and alteration.
Language of a Will: A Will can be written in any language and no technical words need to be used in a
Will, however the words used should be clear and unambiguous so that the intention of the testator is
reflected in his Will.
Stamp Duty: No stamp duty is required to be paid for executing a Will or a codicil. A Will, therefore,
need not be made on stamp paper.
Attestation: A Will must be attested by two witnesses who must witness the testator executing the
Will. The witnesses should sign in the presence of each other and in the presence of the testator.
Under Parsi and Christian law, a witness cannot be an executor or legatee. However, according to
Hindu Law, a witness can be a legatee. A Muslim is not required to have his Will attested if it is in
writing.
Registration: The registration of a document provides evidence that the proper parties had appeared
before the registering officers and the latter had attested the same after ascertaining their identity. In
India, the registration of Wills is not compulsory even if it relates to immoveable property. The nonregistration of a Will does not lead to any inference against the genuineness of a Will. In other words,
registration therefore does not give any special sanctity to the Will though registration of the Will by
the testator himself evidences the genuineness of the Will.
Whether registered or not, a Will must be proved as duly and validly executed, as required by the
Indian Succession Act. 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.
Procedure for Registration: A Will is to be registered with the registrar/sub-registrar with a nominal
registration fee. The testator must be personally present at the registrars office along with witnesses.
Revocation and Amendment: A Will can be revoked, changed or altered by the testator at any time
when he is competent to dispose of his property. A person can revoke, change or alter his Will by
executing a new Will, revoking the earlier Will, registering the new Will (if the old Will is registered),
destroying the old Will or by making a codicil. On the marriage of a Parsi or a Christian testator, his/her
Will stands revoked, this however does not apply to Hindus, Sikhs, Jains and Buddhists.
Codicil:
A codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions
and is deemed to be a part of the Will. A codicil has to be executed and attested like a Will. A codicil is
similar to a Will and is governed by the same rules as a Will.
Probate and Letters of Administration
Probate: A probate means a copy of the Will, certified under the seal of a competent Court with a grant
of administration of the estate to the executor of the testator. It is the official evidence of an executor's
authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities
of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or
Chennai.
Effect of grant of probates : A probate granted by a competent court is conclusive evidence of the
validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a
proceeding to revoke the probate. However, it only establishes the legal character of the executor and in
no way decides the title or even the existence of the property devised. The grant of the probate decides
only the genuineness of the Will and the executors right to represent the estate.
The grant of a probate is conclusive evidence of the testamentary capacity of the person who
made the Will.
A probate is conclusive as to the genuineness of the Will and appointment of the executors.
Once a probate is granted, no suit will lie for a declaration that the testator was of unsound
mind.
Probate is conclusive as to the representative title of the executor.
To whom probates can be granted : Under the Indian Succession Act, 1925, a probate can be granted
only to an executor appointed under a Will. However, it cannot be granted to a minor, a person of
unsound mind, or to association of individuals, unless it is a company that satisfies the conditions
stipulated by the government.
When a probate can be granted : A probate cannot be granted until the expiration of seven days from
the date of the testator's death.
Letters of Administration: In the event a person dies intestate or a Will does not name any executor,
an application can be filed in the courts of law for grant of probate.
To whom can a LoA be granted : Under the Indian Succession Act, 1925, a LoA can be granted to
any person entitled to the whole or any part of the estate of the deceased person. However, it cannot be
granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company
that satisfies the conditions stipulated by the government.
When can a LOA be granted : A LoA cannot be granted till the expiration of fourteen days from the
date of the testator's death.
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.
Disposition of Property: The declaration should relate to disposition of the property of the person
making the Will.
Death of the Testator: The declaration as regards the disposal of the property must be intended to take
effect after his death.
Revocability : The essence of every Will is that it is revocable during the lifetime of the testator.
People capable of making Wills are, Every person who is:
not a minor
of sound mind
free from fraud, coercion or undue influence
Executors:
An executor is a person who is appointed by a testator to execute his Will. In other words, an executor
is duty bound to distribute the assets of the testator as per the provisions of his Will. A probate of a Will
is granted only to an executor appointed by the Will.
Who can be an Executor: All persons capable of executing Wills can be executors. Even a minor can
be appointed an executor of a Will, but a probate cannot be granted to the minor until he attains
majority. A testator can appoint one or more executors. The appointment of an executor may be
absolute or for a limited purpose or limited time. An executor as such does not derive any benefit under
the Will, unless specifically provided for. However, as an executor has vast powers and the property
vests in the executor until it is finally distributed to the legatees, it is therefore advisable to appoint a
responsible and accountable person/institution such as a bank as an executor. The Executor is primarily
appointed to manage the estate of the deceased for the benefit of the beneficiaries/legatees under the
Will.
Legal status of the Executor: The executor is the legal representative for all purposes of a deceased
person and all the property of the testator vests in him until the property is distributed as per the
provisions of the Will. The executor is entitled to represent the testator in any legal action (not
including criminal or defamatory proceedings). For example, an executor can sue for recovery of the
testator?s debts. It is only the legal estate of the deceased that vests in the executor and the vesting is
not of beneficial interest. The property vests in the executor only for the purpose of representation and
administration.
Duties of an Executor:
Special Provisions
A Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists.
The executor can also be the witness to the Will.
A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or
Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or
Chennai.
A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or
Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or
Chennai.
On the marriage of a Parsi or Christian testator, his/her Will stands revoked.
Muslims Will
Muslim Personal Law governs a Muslim testator's power to make a Will, the nature of the Will, its
execution and attestation thereof etc. Under the Muslim Personal Law, a Muslim testator can make a
Will orally or in writing and no form is required for such writing. However, it is preferable to have a
written Will. If the Will is in writing it need not be attested. It may be noted that the provisions of the
Indian Succession Act do not generally apply to a Muslim testator unless specifically stated in the Act.
In India, a person who is a major and of sound mind can make a Will and he can dispose of all or any
part of his property by Will. However, there are two basic restrictions on the power of a Muslim testator
to make a Will,
A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void
if a Muslim testator, after making the Will, becomes unsound of mind and continues to be so till his
death. Similarly, a bequest which is contingent, or conditional or in the future or is alternative to
another, pre-existing one, would be void. If an executor is appointed by a Muslim testator, the powers
and duties of the executor will be in accordance with the provisions of the Indian Succession Act which
have been discussed elsewhere.
What is a Will ?
A will can be made by anyone above 21 years of age in India. You can make the will on plain
paper in India. Its not legally necessary to make the will on stamp paper. It is advisable to write
your will in your own hand writing, as the same can be verified later in case of any doubts raised
by relatives. It might happen that according to your family structure and your preferences, you
want to divide your wealth unequally or make a provision for a close friend or a faithful servant.
This isnt possible if you die without a will. A lot of us feel that talking about Making a Will is
pretty morbid, and hence, we dont look at it with right attitude.
A will is a sensitive topic to open up to. People are not comfortable discussing a will in India.
There is a misconception that if someone tells you to make a will, the person thinks that indirectly
you are telling him that his end is near or that you are eying his property. However, all
apprehensions disappear when I tell them the consequences of not making a will says Shankar
Pai, who has done some commendable work in area of spreading awareness on making wills.
succession, are complicated and diverse in nature, and are different in case of Hindus and
Muslims.
Another point you should consider, is the inconvenience caused to your family members because
of your laziness, in not making a will for them. In case of a dispute, your family members have to
produce the proof about their relationship with and also have to go helter-skelter to lawyers and
spent money and energy. Much better then, to gift them some time of yours, and creating a will!
This will save them a lot of headache.
Step 3: Details of ownership : At the end of the will, you should mention who should own your
assets items and in what proportion, after you have gone. If you are giving your assets to a minor,
make sure you appoint a custodian of your assets till the individual you have selected, reaches an
adult age. This custodian obviously, has to be a trustworthy person.
Step 4 : Signing the Will : At the end, once you complete writing your will, you must sign the
will very carefully in presence of at least two independent witnesses, who have to sign after your
signature, certifying that you have signed the will in their presence. The date and place, also must
be indicated clearly at the bottom of the will. Make sure you and the witnesses sign all the pages
of the will. One important point while choosing witness, is that they should be your friends,
neighbors, or your colleagues and not the direct beneficiaries in the Will. They only certify, that
you yourself have signed the will in their presence and are not a party in making the will in India.
The envelope has to be sealed after completing all the formalities and the seal must bear your
signature and the date of sealing. The witnesses need not sign on the seal of the envelope.
See another Template from Department of Stamp and Registration, Karnataka here, thanks to
Babu .
their heirs and nominees settle their disputes. Till then, the flat may be used by Nominees or any
other person. But Society will not transfer the flat to prospective buyer till the process of probate
is settled first. Hence such property cannot be sold easily. Please proceed with great care in this
matter.