‘Will’ and ‘Execution of Will’ post demise of Hindu Testator
“Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
A Will is intended to dispose of property. There must be some property which is being given to others after the death of the testator.
A Will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator. It has no effect during the lifetime of the testator.
1) Who can make a Will?
A Will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. (However, Mohammedans are not governed by the Indian Succession Act, 1925 and they can dispose of their property according to Muslim Law)
a) Every person (in this case ‘Hindu’) who is of sound mind and is not a minor can make a Will’.
b) Persons who are deaf or dumb or blind can make a ‘Will’, provided the are able to know and understand the contents thereof.
c) A person who is ordinarily insane may make a ‘Will’ during an interval in which he is of sound mind.
d) No person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause that he does not know what he is doing or consequences thereof.
e) Every person, not being a soldier employed in an expedition or engaged in warfare, or an airman so employed or engaged, or a marine at sea shall execute his Will accordingly.
2) What are mandatory requirements of a valid Will?
a) The name of the testator should be mentioned accurately without errors in initials, spellings and grammatical mistakes.
b) The testator shall sign or fix his mark to the Will or it shall be signed by some other person in his presence and as per his direction.
c) The signature or mark should be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
d) The Will should be clearly drafted in simple and cogent language without any possibility of confusion or dual interpretation of the language or intention of the testator.
e) The Will must name a person as Executor who is authorized to execute the Will after the demise of the testator. The roll of the executor is just to execute the Will in letter and nothing else.
f) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark on the will or Has seen some other person sign the will, in the presence and by the direction of the testator or Has received from the testator a personal acknowledgement of his signature or mark,or of the signature such other person;
g) Each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation is necessary.
h) A medical certificate from a Registered Medical Practice nor (RMP) certifying the mental soundness of the testator should be attached to the Will.
i) Registration of the Will although advisable but not mandatory as per law.
3) Which property could be bequeathed by the testator?
Any movable or immovable self-acquired property can be bequeathed by a Will by its owner (testator).
4) Can testator change the Will? If yes when and how?
During the lifetime of the testator he/she can change the Will, at any time, in any manner he/she deems fit. If a testator intends to make a few changes to the Will, without changing the entire Will, he can do so by making a ‘Codicil’ to the Will. The Codicil can be executed in a similar way as the Will. (“Codicil” means an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will.)
A Will or Codicil is not unalterable or irrevocable. They can be altered or revoked at any time during the lifetime of the testator.
5) What the legal procedure for execution is of will post death of the testator?
On the death of the testator, the Executor of the Will or an heir of the deceased testator can apply for probate to the civil court. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court will grant probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will.
6) Is succession certificate necessary?
A Succession Certificate is a certificate which is granted by Courts in India to the legal heirs of a person dying intestate leaving debts and securities. (A person is said to have passed away intestate when he/she does not leave a legal will). Succession Certificates entitle the holders to make payments of debt or transfer securities to the holder of the certificate without having to ascertain the legal heir entitled to it. Succession Certificates provide indemnity to all members owing such debts and liable on such securities with regards to all payments made to or dealings made in good faith with a person to whom a Certificate has been granted. Therefore, many persons and organizations request for succession certificates before settling the debts or securities of the deceased in favor of the person claiming such debts and securities.
7) Who can obtain a Probate of the Will?
According to Section 222 of the Indian Succession Act, 1925, Probate shall be granted only to an Executor appointed by the Will. The appointment may be expressed or by necessary implication. In the absence of the Executor being named in the Will, the Legatees or the Beneficiaries under the Will could also seek probate of the Will.
8) Where an Application for the Probate of a Will can be filed?
A petition has to be filed before the Principal Court of Original Jurisdiction.
9) What is the process of obtaining a Probate?
a) A petition has to be filed before the Principal Court of Original Jurisdiction where the testator was domicile or his immovable property is situated as per the Indian Succession Act.
b) The Court in question will issue the court notices at the initial stage.
c) A paper publication (one English and One Vernacular) calling for objection will be caused besides a Gazette publication as well.
d) In case such a petition is contested, it will be converted into a regular suit and upon contest the same will be disposed of, by delivering the judgment and decree, in accordance with law.
e) The other provisions of Civil Procedure Code shall be applicable to Probate.
10) What is the Court Fee to be paid?
The court fee to be paid under Maharashtra Court Fees Act for Probate of Will or Letter of Administration the court fees is up to 7.5% of the valuation of the Property subject to maximum of Rs.75, 000 /- However, under the latest amendment i.e. Maharashtra Court Fee (Amendment) Act 2017, the court fees payable shall be up to 9% of the valuation of the Property subject to maximum of Rs. 3, 00,000/-. (This amendment is not enforced as on date of this advice and hence max court fees is Rs. 75k as on date)
11) What is the average time taken for the grant of a Court?
It takes about 8 to 10 months (Approx) to obtain a probate.
12) What is the average Legal Fees involved in the process?
The average Legal fee depends upon the experience and expertise of the Law firm or lawyer handling the matter and cannot be standardized as such.
13) What are the documents required at the time of filing of an Application for Probate of the Will?
a) Original will of the deceased.
b) Title Deeds pertaining to the immovable property mentioned in the Will.
c) Documents pertaining to the movables, mentioned in the Will, if any.
d) Bank Details, if applicable
e) Identity and Address proof documents of Executor, Beneficiaries etc.
f) Death Certificate if the testator
g) Birth Certificates and Domicile Certificates of all the beneficiaries
h) Affidavits/ Undertakings as per court procedure
i) Any other relevant documents sought by the court
14) What documents are required to be filed by the Beneficiary?
15) What documents are required to be filed by the successor of the Testator who neither is the Executor nor the Beneficiary?
The successor of the Testator has no right over the property if his/her name is not mentioned in the will. Thus, no documents are required to be filled by him/her. Nonetheless, he has right to object the same and the court may consider his objection and decide as per law.
Author: – Kajal Agarwal, Intern, TruLex
