How is the au­then­tic­ity of a will ver­i­fied?

Pro­bate and let­ters of ad­min­is­tra­tion are two vi­tal le­gal doc­u­ments that en­able speedy and ef­fec­tive set­tle­ment of wills

HT Estates - - HTESTATES - Sunil Tyagi

Wh at a r e t h e l e g a l re­quire­ments for car­ry­ing out the wishes of a tes­ta­tor (ie, per­son de­ceased who leaves be­hind a will) af­ter his or her demise? The first im­por­tant re­quire­ment is that of ob­tain­ing pro­bate, wher­ever it is com­pul­so­rily re­quired. A pro­bate is es­sen­tially a copy of the will of the de­ceased, cer­ti­fied un­der the seal of a com­pe­tent court, with a grant of ad­min­is­tra­tion of the tes­ta­tor’s as­sets. Once s at i s f i e d about due ex­e­cu­tion of the will as per re­quire­ments un­der the In­dian Suc­ces­sion Act, 1925 (ISA), the court grants a pro­bate or­der which cer­ti­fies the au­then­tic­ity of the will. The In­dian Suc­ces­sion Act, 1925, deals with pro­bate and let­ters of ad­min­is­tra­tion.

It is a mis­con­cep­tion that pro­vi­sions of ISA do not ap­ply to Hin­dus at all. Rather, ISA is a com­plete code of law of tes­ta­men­tary suc­ces­sion gov­ern­ing Hin­dus too, ex­cept to the ex­tent mod­i­fied by the Hindu Suc­ces­sion Act, 1956. Some im­por­tant point­ers are be­low: In or­der to ap­ply for pro­bate, the ap­pli­cant must be able to show that he/she has been named as an ex­ecu­tor un­der the will of the de­ceased - ei­ther ex­pressly or by nec­es­sary im­pli­ca­tion. Hence a per­son not named as an ex­ecu­tor, is not el­i­gi­ble to file pro­bate pe­ti­tion.

In pro­bate pro­ceed­ings, the court deals with ques­tions such as whether will of the de­ceased was ac­tu­ally his/her last writ­ten will, whether the re­quired to sup­ple­ment the ev­i­dence.

At present, it is com­pul­sory to ob­tain pro­bate of a will that has been ex­e­cuted in cities like Mum­bai, Chen­nai or Kolkata. It is also com­pul­sory to ob­tain pro­bate of a will which sets out in­her­i­tance of prop­er­ties that are sit­u­ated in Mum­bai, Chen­nai or Kolkata – ir­re­spec­tive of the place of ex­e­cu­tion of the will. Let­ters of ad­min­is­tra­tion: In the event that the de­ceased has not named any per­son to be ex­ecu­tor of his/her will, a lega­tee un­der the will may be ad­mit­ted to prove the will in­stead. In such a case, the court would grant let­ters of ad­min­is­tra­tion to the ex­ecu­tor. There are also in­stances where even though the de­ceased has named an ex­ecu­tor in his will, the ex­ecu­tor re­fuses to act or is le­gally in­ca­pable to act. In such cases, too, a lega­tee may be ad­mit­ted to prove the will, and let­ters of ad­min­is­tra­tion may be granted to him.

Where a de­ceased has named an ex­ecu­tor in his will, but the ex­ecu­tor dies be­fore hav­ing ad­min­is­tered the es­tate of the de­ceased, let­ters of ad­min­is­tra­tion may be granted to the lega­tee in such cases too.

In or­der to en­sure smooth and speedy ad­min­is­tra­tion of the es­tate af­ter one’s demise, one must clearly set out the scheme of in­her­i­tance and name the ben­e­fi­cia­ries ex­plic­itly un­der the will.

The au­thor is se­nior part­ner at Zeus Law, a cor­po­rate com­mer­cial law firm. One of its ar­eas of spe­cial­i­sa­tion is real es­tate trans­ac­tional and lit­i­ga­tion work. If you have any queries, email us at ht­es­tates@ hin­dus­tan­times. com or ht@ zeus.firm.in

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