Reg­is­tra­tion of a will has its set of ad­van­tages

HT Estates - - HTESTATES - Payal Chawla

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.

THINKSTOCK

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