(Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)
People have fair knowledge of will, which is defined in
Section 2(h) of Indian Succession Act 1925 as “The legal declaration of
intention of the testator, with respect to his property, which he desires to be
carried into effect after his death”. Testator means the owner of the property
who makes the Will. The intentions of testator as to how his properties are to
be succeeded are detailed in Will.The devolvement of properties as directed in
the Will takes place after the death of testator, otherwise called as author of Will.The Testator may also appoint some person to carry out the directions and
his requests in the Will. Such a person is called executor. If the testator
does not appoint any executor the competent authority, the court may appoint a
person to administer the estate of the testator, who is called a administrator.
The persons who are entitled to the benefits under the will are called
Legatees. “Bequest under Will is not transfer of Property”
Revocation of WILL
Will is always revocable; it can be revoked following
manner: Revocation by another Will or Codicil.Revocation by declaration in
writing.Revocation by cancellation.Revocation by destruction; Will can be
revoked ‘by burning, tearing or otherwise destroying.
Under Mohammedan law: no writing is required to make a
Will Valid and no particular form; even of verbal declaration, is necessary as
long as intention of the testator is sufficiently ascertained, and though if it
is writing it does not require to be signed nor even signature and attestation,But under Mohammedan law a Mohammedan cannot dispose of more than one third of
share of his property over which he has power of disposition by will. Bequest
in excess of the legally One Third shares cannot take effect, unless the heirs
do not consent. The remaining two third portions shall go to his heirs in share
prescribed by law.
Probate
Probate is defined in Indian Succession Act, as “a copy of Will certified under the sealof a court of
competent Jurisdiction with grant of administration to the estateof testator”.
This is the official proof of the Will. Application for probate has to be filed
under section222, and 276 of Indian Succession Act in the probate division of High Court.The Petition for grant of probate shall also be verified by at
least one of the witnesses to the will if procurable. However this condition is
recommendatory and not mandatory. Probate will be issued only to the executor
appointed in the Will. If there is no provision for appointment of executor in
the Will, the court will grant only letter of administration. The Will is
considered to be a genuine one after the probate is granted by probate division
of High Court. It binds not only the persons, who are the parties, but also
others, who are not parties to the probate proceedings.
Section 233 of Indian Succession Act 1925 states that
Probate will not be granted to minors, persons of unsound mind, to any
association of Individuals unless it is a company, which satisfies the rules,
conditions prescribed and published in official gazette by the State
Government.
When the Will is
to be probated, the original is to be deposited in the registry of the court.
The court will issue a copy of the Will with a certificate of having it made
out under the seal of the court. The copy issued to the executor is called
probate.
If a codicil is discovered after the grant of probate a
separate probate exclusively of such codicil will be granted to the executor
provided the discovered codicil does not appoint another executor. Codicil is
an addition to the Will; a supplement to the Will. It can be made any time
after the Will is made, during the life time of testator.A codicil contains
anything, which the testator wants to add, any explanation, cancellation and
even cancellation of the Will. Codicil is a document that amends rather than
replaces a previous executed will, and Codicil is part of main Will and needs
to be executed with the same formalities as that of a will and must be proved
with the Will. If the testator appoints a different executor in codicil, which
is discovered subsequent to grant of probate, the probate of the Will stands
cancelled. A new probate of both Will and codicil has to be granted together.
If the Will is lost or misplaced by accident and if a copy
of the Will is available the probate may be granted until original Will is
produced. If the Will exists and the possessor refuses to give the to give the
will or the possessor is abroad, the court may grant probate on the copy of the
draft Will until the original or authenticated will is produced.
The Probate of
the Will is issued in common form, if not disputed and it will be in solemn
form if disputed or irregular.
Where Probate is
required?
There is much confusion whether all wills execute by
Hindus, Muslims, Christians, Buddhists, Sikhs, Jains require probate. Section57 and read with section 213 of Indian Succession Act clears this confusion.
Obtaining of probate and letters of administration are
mandatory to establish the right as executor or legatee as per those sections.
But the application of the sections is restricted. Act specifically exempts
Mohammedans and Indian Christians. Indian Christians means a native of India,
who is or in good faith claims to be of unmixed Asiatic descent and who
professes any form of Christian religion. In case of Hindus, Buddhists, Jains,
Sikhs the provision is applicable only to the Wills made after 01.09.1870 within
the territories which on the said date were subject to the Lieutenant Governor
of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Madras or Bombay and even to the Wills made outside those
territories, if the immovable properties referred in Will falls within the
territories mentioned above. Provision is not applicable to Wills made by
Hindus, Buddhists, Sikhs, Jains outside these territories or if the immovable
properties referred in will are situated outside these territories. Probate of
will is must in Madars, Bombay and Calcutta. In moffusal areas it is optional.
Obtaining of probate is also applicable to Parsis, if a
person executes Will and he dies after the commencement of the Indian
Succession Act, within the local limits of ordinary original civil Jurisdiction
of High Courts, of Calcutta, Madras, and Bombay or if the immovable properties
referred in Will is situated in those territories.
As stated earlier, the probate will be granted only to the
executor appointed in the Will. Such appointment may be expressed or by
necessary implication. Suppose In the Will if it narrates that ‘A’ shall be the
executor, and ‘B’ do not have any interest, then in such circumstance ‘A’ shall
be the executor and ‘B’ does not have any interest. If several executors are
appointed, the court may grant probate to all of the simultaneously or if it is
not possible to grant probate simultaneously it may be granted at different
times. In case where probate is granted to several executors and if anyone of
the dies, the full representation of testator rests on the surviving executors.If the executor appointed renounces or does not accept to be executor, within
the time limited for acceptance, the Will may be probated and letters of
administration with a copy of the will annexed may be granted to person, who
would be entitled to administration.
Death of
Executor
The Act provides for various contingencies. If the
testator who has made the Will
a)Does not appoint an executor
b)Or the appointed executor is legally incapable to act or
executor died before the Will is probated.
c)Or has died after having probated the Will but before
carrying out the directions of the testator.
The court may
admit an universal or residuary legatee to probate the Will and letters of
administration may be granted to him.
If the author of the Will bequeaths all his properties to
a single person, such a person is called universal legatee. After paying all
debts, charges and devolvement to legatees, as per the Will anything that
remains is called residue. The testator may bestow such residue to a particular
person who is called residuary legatee. In certain cases the residuary legatee
may die before the properties of the testator are devolved as per will. The
representative of the residuary legatee has the same right to administration as
that of a residuary legatee.
The executor may
be appointed for any limited purpose the relevant probate shall also be for such
limited purpose.
Revocation of Probate: The grant of probate may be revoked
on following grounds. A) The proceedings
to obtain the grant were defective in substance. B) The grant was
obtained by fraud, by making false suggestions. C) The grant was obtained by
means of untrue allegation of a fact essential in point of law to justify the
grant, though such allegation was made in ignorance or inadvertently.D) The grant
has become useless and inoperative through circumstances. E) The person to whom
the grant was made has willfully and without reasonable cause omitted to
exhibit an inventory or account in accordance with prescribed law or exhibited
inventory of account which is untrue in material respects. District Judges also have Jurisdiction to grant and revoke probates in all cases within his
district.
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