Registration of a will has its set of advantages
The law of inheritance governs how the property of an individual devolves upon the heirs of a deceased person. This can often be complex, since, succession is governed by the religion of a person.
There are two types of succession, testamentary succession and intestate succession. Testamentary succession means succession on the basis of a will, whereas in intestate succession, the person dies without making a will.
The basic law of inheritance and succession, in India, is governed by The Indian Succession Act, 1925. However, in case of Hindus, Sikhs, Jains, Buddhists and Muslims, t he I ndian Succession Act, 1925 applies only if they leave a will. If a Hindu, Sikh, Jain or Buddhist dies without a will, they will be gover ned by the Hindu Succession Act, 1956. And if a Muslim dies intestate, his/her succession shall be governed by The Muslim Personal Law (Shariat) Application Act, 1937. There are certain other exceptions, but as a general rule of thumb, most other successions and inheritance are governed by the Indian Succession Act, 1925.
When a person makes a will, it is known as testamentary succession. The person making the will is called the ‘testator’, the person(s) to whom the estate is willed are known as ‘beneficiaries’ and the person appointed to execute the will is known as the ‘executor’.
A will, takes effect only after the death of the testator. A will does not require compulsory registration and is a valid instrument, even without registration. But even so, registration does have its advantages and it is therefore, always, advisable to register a will. Registration of a will, additionally, creates a strong inference of its genuineness and validity. A will must never be witnessed by beneficiaries and it can defeat the will.
A will, by its nature, is a revocable instrument. It can be revoked or modified at any time during the lifetime of a testator. Where a testator merely modifies part of the will by another instrument, but leaves the previous will as is, the amendment to such a will is known as a ‘codicil’. In case of a codicil, both the original will and codicil must be read together. However, mutual will are an exception to this principle of testamentary succession. In a mutual will, testators can, by agreement, agree for their respective properties to devolve upon the other and upon the death of all the testators, the estate to devolve upon their jointly agreed beneficiaries. If, upon the death of one of the testators, the surviving testator acts upon the basis of such mutual will, such surviv- ing testator is then, bound by the terms of the will and the same will be treated as a contract in law. The mutual testators can, during their life times, amend the mutual will. If the surviving testator does not act on the basis of the will, such surviving testator will not be bound by the mutual will and shall have the freedom to bequeath his/her own estate in the manner s/he wishes. Joint wills are different from mutual wills.
Always choose witnesses that are younger than the testator and are likely to outlive the testator in question, and are persons of high integrity. It is important that witnesses must see the testator sign and execute the will in his/her presence. The process of witnessing of will by a witness is known as attestation and the courts have attached much importance to personal sight of witnesses in the process of attestation. In the matter of Mirza v. Sangster, in 1928, the Hon’ble High Court of Oudh held “that attestation was bad in law where the testator was in the room and the attestors were in a different room from where they could not see the testator and they signed in such other room”. It is settled law that there must be a minimum of two attestors in order to validate a will [1929 Patna High Court in the matter of Umakant v. Biswambar].
While drafting a will it is important for the testator to draft the bequest in clear terms. If the bequest is wrought in uncertainty, such a will is treated to be void under Section 89 of The Indian Succession Act.
I n t he matter of E. W. BallaKrishna v. Mahalaxmi Ammal, the Hon’ble Supreme Court in 1961 held, “….where it is impossible to ascertain the intention of the testator from the words used in the Will. Such a Will, will be void for uncertainty”. The estate of a testator, does not devolve upon the beneficiary automatically upon the death of the testator. There is a defined procedure under law which needs to be followed. Generally, procedure involves seeking a probate or a succession certificate or the grant of letters of administration. Each of these is a different procedure and their purposes are different too.
Probate can only be granted to an executor named in the will. The naming of an executor can be explicit or by implication. Probate establishes the appointment of an executor of the will and the validity of the will. Probate does not confer title. It is a settled principal of law that a probate court can only go into the question as to whether the will is true or not. The court cannot get into the question of title with reference to the property covered by the Will. It does not decide the question of title. In the matter of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and Ors., in 2007, the Hon’ble Supreme Court has held that probate court is ‘not competent to determine the question of title of suit property nor will it go into the question whether properties bequeathed by the will were joint ancestral properties or were acquired properties of testator”.
Probate is different from a succession certificate. A succession certificate is obtained when a person dies intestate or when the will involves only movable property.
However, in certain instances, the beneficiaries would be required to obtain letters of administration. These instances are where testator has not appointed an executor in the will; where the executor refuses to act or where the executor has died before or after proving the will, but before administration of the estate or in case of intestate succession.
A person to whom a probate or letters of administration granted has the responsibility to make and file before the court a full and true inventory of the estate including assets and credits owned to and debts by the estate within six months, or such further time as permitted by the court.