IMPORTANCE OF A “WILL” AND ISSUES RELATING THERETO. RAHUL CHITNIS, ADVOCATE.
RAHUL CHITNIS, ADVOCATE
The expression ‘will’ is defined under Section 2(a) of the Indian Succession Act, 1925, as 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.
Allowed to be made by a soldier or an airman or a mariner engaged on an expedition or in actual warfare and it enjoys certain privileges namely:
even if a will mentioned above is not signed by him it would be valid if it is written by his discretion or it is recognized by him as his will,
even by verbal instruction given by such a testator are written down in his lifetime, such written instructions would constitute a privileged will even if he dies without signing the same and although they have neither been reduced into writing in his presence nor read over to him,
Can be made by any person who has attained majority and who is not of unsound mind or who, in spite of illness or other cause, is in such a state of mind as to be in a position to know what he is doing (section 59 of the Succession Act, 1925).
The testator also must have the power of disposition over the property which he proposes to dispose of in the will.
It can be made even by a deaf or a dumb person or even by a person suffering from cancer.
the signature or the mark of the testator must be attested by at least two witnesses who must have seen the testator or some other person as aforesaid signing or putting his mark and have put their signature in his presence and at his direction or the testator must have acknowledged his signature or mark or of the other person and the witness must sign in the presence of the testator.
It is not necessary that the two witnesses must be present at the same time.
A will is always revocable only during the life of the testator, though the will is stated to be irrevocable.
The Supreme Court of India has held that in a case where a will is registered and the sub registrar certifies that the same has been read over to the executants who on doing so admitted the contents, the fact that the witnesses to the documents are interested, looses significance.
No person can make a binding disposition of its own dead body so as to oust the executor’s or heir’s right to the custody and possession of it and their duties relating to disposal of it.
clause mentioning specific bequests followed by two clauses (a) one containing the general bequest and (b) the second containing the residuary bequest.
a clause is also inserted stating that the testator is in sound health and proper state of understanding, though that clause has not much value
the third way is provided by section 42 of the Registration Act, under which the testator or his authorized person can deposit the will in a sealed cover with the Registering officer as in the section provided.
A combined reading of Section 213 and Section 57 of the Act where the parties to the will are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application.
As a consequence, any will made by Hindu, Buddhist, Jain or Sikh person in the erstwhile State of Mumbai (within the original jurisdiction of the High Court of Mumbai) will not be required to be probated in respect of a will made outside those territories or regarding the immovable property outside those territories.
Under Section 222 of the Succession Act, Probate can be granted only to the Executor appointed under the Will.
Under Section 224 of the Succession Act, when there are several executors, Probate may be granted to them simultaneously or at different times.
Section 227 of the Succession Act provides that a Probate of the will, when granted, establishes the will from the death of the testator and renders valid all intermediate acts of the executor.
If the Executor renounces his executorship, then letters of administration can be granted, as provided under Section 229 of the Succession Act.
If the Executor fails to refuses to act within time, then in such circumstances, the Will can be proved and Letters of Administration can be issued with a copy of the Will annexed, as provided for under Section 232 of the Succession Act.
When the deceased has made a will, but has not appointed an Executor or the deceased has appointed an Executor who is legally incapable or refuses to act or who has died before the testator or before he proves his will or an Executor dies after having proved the will, but before he administers all the estate of the deceased, then in such an eventuality, under Section 232 of the Succession Act, the Letters of Adminstration can be granted to the Residuary Legatee.
A Succession Certificate can be granted only in respect of Debts and Securities under Section 370 of the Succession Act.
An existence of a Will does not act as a bar to apply for a Succession Certificate in view of Section 387 of the Succession Act.
A nomination is in its nature testamentary, as the death of the nominee in the lifetime of the nominator defeats the nomination. Such a nomination, in order to be effective, need not be executed as a will but must be in accordance with the formalities required by the particular provisions applicable.
If the testator in accordance with the statutory power has nominated a person to receive a particular sum on his death that sum cannot, it seems, be disposed of by his ‘will’ except where under the terms of the relevant statutory provision and in the circumstances of the case the will constitute an effectual revocation of the nomination.
“Even when a person is nominated or even when a person is recognized as an heir or a legal representative of the deceased member, the rights of the persons who are entitled to the estate or the interest of the deceased member by the virtue of law governing succession are not lost and the nominee or the heir or the legal representative recognised by the society, as the case may be, holds the share and interest of the deceased for disposal of the same in accordance with law. It is only as between the society and the nominee or legal heir or legal representative that the relationship of the society and its members is created and this relationship continues and subsists only till the estate is administered either by the person entitled to administer the same by the court or the rights of the heirs or persons entitled to the estate are decided in a court of law.”