Wills – Legal Aspects

March 3, 2020

Every person who has a right in moveable and immoveable property has a right to dispose of the same during his life time.  However Will is a concept by which that right is exercised, by the owner of that right, after his death through an agency appointed by the owner.  Will is recognized as a mode of disposal of the property post mortem by all the communities in India.  Some salient features of the Will are as follows:-

1.    There has to be an executor or executors of the Will, which are considered to be the hands of the testator (maker of the Will).

2.    The Will must mention only the property of the Testator and the beneficiary to whom the same is bequeathed.

3.    The Will has to be signed by the Testator in the presence of at least two witnesses, who shall sign the Will as witnesses in the presence of each other and in the presence of testator.  In other words the Testator and the witnesses have to be present at the same time and sign the Will in each other’s presence.

4.    The Will does not create any title in the legatee (beneficiary under the will) and only the rights of the Testator pass on to the legatees.

5.    A trust can be created by will for the beneficiary.

6.    A Will is not required to be stamped with any stamp duty.

7.    A Will is not required to be registered under the provisions of Indian Registration Act but it can be registered if the Testator so desires.

Ordinarily the Will is not required to be probated.  Traditionally the Will is read out by the executor after the mourning period is over, by calling all the relatives of the Testator including the legatees under the will and heirs of the Testator if they are different than the legatees.

If all the heirs of the Testator, under the provisions of law of inheritance, get the same share of the estate of the Testator under the Will, which they would have received without a Will then the Will is not challenged.  If however there is unequal distribution of the estate among the heirs or any heir is totally omitted as a legatee then such dissatisfied person normally challenges the will on some of the following grounds:-

1.    The signature at the foot of the will is not of the Testator meaning the signature is forged.

2.    The witnesses were not present when the testator signed the Will.

3.    All the three i.e. Testator and two witnesses did not sign at the same time.

4.    The Testator was in position to sign the Will and the signature on the will defers from the normal signature of the Testator.

5.    The signature on the Will is obtained by the major beneficiary under the will by undue influence or fraud.

6.    There is a subsequent will and hence the will sought to be probated is not the last will and hence null and void.

Ordinarily no probate of the will is required to be taken for transmission of properties to the legatees.  However if the transmission is disputed then either the disputant goes to the Court to annul the will or files a Caveat in the probate proceedings.

It is desirable that the executor or executors should be younger to the Testator, so that there is a fair chance of their surviving the Testator.  If the Testator is old and/or infirm it is advisable to have family doctor as one of the witnesses, who can later on give evidence about the disposal state of mind of the Testator.

If the Testator believes that his will is likely to be challenged because of unequal distribution amongst his heirs then it is advisable to inform the executors, who eventually will be Petitioners at the time of filing of the Petition for Probate.  Similarly the witnesses should also be told about the likely challenge, since the witnesses to the will, have to be witnesses in Court and would be cross examined by the Caveator’s Advocate.

Caveat is document which the challenger to the will has to file in Court within 10 days after the citation (i.e. notice of filing of the Petition) is served on the heirs.  Once the Caveat is filed the Probate Petition becomes Testamentary Suit and affidavit in support of Caveat filed by the challenger becomes the Written Statement and then the litigation decided like a normal suit.

The citation has to be served on all the heirs of the Testator, who would have got a share in the estate of the Testator under the law of inheritance, if there was no will.  Probate is legal recognition of the genuineness of the will and has to be produced before every authority by the executor for transmitting the property to the name of the legatee.

The Executor’s job comes to an end after all the property is distributed to the legatees and discharge receipt is obtained from every legatee stating that they have received their share in the estate as per the will.

Where there is will there is a probate.

To read more on all other aspects of Wills and Nominations by Vimal Punmiya CA, Click here.

This article has been written by Rajan Jayakar, Advocate & Solicitor & Trustee of V Citizens Action Network.

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