Ex­ecu­tor in a will plays a vi­tal role even af­ter death

Hindustan Times (Chandigarh) - Estates - - FRONT PAGE - SU­NIL TYAGI The au­thor is Se­nior Part­ner, ZEUS Law, a cor­po­rate com­mer­cial law firm. One of its ar­eas of spe­cial­iza­tion is real es­tate ad­vi­sory and lit­i­ga­tion prac­tice. If you have any queries, email us at ht­es­tates@hin­dus­tan­times.com or ht@zeus firm in

The ap­point­ment of an ex­ecu­tor an im­por­tant pro­vi­sion of a Will. An ex­ecu­tor is ap­pointed un­der a Will to ef­fec­tu­ate the wishes of the tes­ta­tor (one who writes the Will) as men­tioned in his Will with re­spect to the dis­tri­bu­tion of his es­tate af­ter the demise of the tes­ta­tor.

Al­though un­der the pro­vi­sions of The In­dian Suc­ces­sion Act, 1925 (“Act”), it is not manda­tory to ap­point an ex­ecu­tor of a Will, nev­er­the­less it is ad­vis­able to ap­point an ex­ecu­tor of a Will as he acts as a le­gal rep­re­sen­ta­tive of the tes­ta­tor and is duty bound to im­ple­ment the Will af­ter the demise of the tes­ta­tor.

An ex­ecu­tor is en­trusted with the duty to carry out the in­struc­tions of the tes­ta­tor with re­spect to the mode and man­ner of the dis­tri­bu­tion of his es­tate/ as­sets/ prop­er­ties af­ter his demise.

An ex­ecu­tor un­der the Will may ei­ther be ex­pressly ap­pointed or be ap­pointed by im­pli­ca­tion. Gen­er­ally, the ex­ecu­tor is ap­pointed by the name in the Will.

How­ever, some­times an ex­ecu­tor can also be ap­pointed by the im­pli­ca­tion where it ap­pears that the par­tic­u­lar per­son has been ap­pointed to per­form the du­ties of the ex­ecu­tor.

To il­lus­trate with the help of an ex­am­ple, ‘A’ men­tions in his Will that ‘B’ shall be the ex­ecu­tor of his Will if C is not. Here, ‘B’ is the ex­ecu­tor by ex­press ap­point­ment and ’C’ is an ex­ecu­tor by im­pli­ca­tion.

Un­der the Act, the pro­bate of a Will is granted only to an ex­ecu­tor. Pro­bate means a doc­u­ment is­sued un­der the seal of a court of com­pe­tent ju­ris­dic­tion with the grant of the ad­min­is­tra­tion to the es­tate of the tes­ta­tor. It is le­gal process whereby the Will is proved.

There is no re­stric­tion un­der the Act to ap­point a ben­e­fi­ciary un­der a Will, as an ex­ecu­tor of the Will.

The ex­ecu­tor’s role is vi­tal as it en­sures that even af­ter the death of the tes­ta­tor, a tes­ta­tor can act through him. There can be sin­gle or sev­eral ex­ecu­tors ap­pointed in a Will. When a tes­ta­tor ap­points sev­eral ex­ecu­tors, the nor­mal in­fer­ence is that he ex­pects all of them to act to­gether.

In such cases, the opin­ion of the tes­ta­tor is im­plicit in the ap­point­ment be­ing that he ex­pects his Will, would be full and prop­erly ex­e­cuted when all ex­ecu­tors ap­pointed by him act to­gether.

In cases where the Will di­rects that the sev­eral ex­ecu­tors are to act jointly then no act can be done/ car­ried out by a sin­gle ex­ecu­tor.

To il­lus­trate with an ex­am­ple, if A and B are ap­pointed joint ex­ecu­tors for a Will and if it is di­rected in the Will that A and B have to act jointly then no act can be done by a sin­gle ex­ecu­tor. How­ever, if in the Will the tes­ta­tor has men­tioned that the exec- utors can act jointly or sev­er­ally, then the power can be ex­er­cised by any one of the ex­ecu­tors.

It is also im­por­tant to men­tion here that no one is bound to act as an ex­ecu­tor against his/ her wish. An ex­ecu­tor has the op­tion to re­nounce his ex­ecu­tor­ship. Un­der the pro­vi­sions of the Act, the renunciation may be made orally in the pres­ence of judge or by a writ­ing signed by per­son re­nounc­ing.

It is per­ti­nent to men­tion here that in cases where one of the joint ex­ecu­tor has nei­ther re­nounced the ex­ecu­tor­ship nor is will­ing to act as a joint ex­ecu­tor and has taken an in­ter­est hos­tile to the es­tate then that such a per­son by his or her con­duct dis­qual­i­fies and dis­en­ti­tles him­self from the ex­ecu­tor­ship.

To con­clude, it is ad­vis­able that a trust­wor­thy per­son is ap­pointed as an ex­ecu­tor by the tes­ta­tor while writ­ing a Will, in or­der to en­sure that af­ter his demise the dis­tri­bu­tion of his es­tate/ as­sets/ prop­er­ties is car­ried out by the ex­ecu­tor in ac­cor­dance with the wishes of the tes­ta­tor.



A tes­ta­tor is one who writes a will

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