Wills & Trusts

A Will is a legal declaration of the intentions of a testator with respect to his property which he desires to be carried into effect after his death.

Testator is a person making the Will by writing down his intentions with respect to how he would like for his property to be devolved after his death.

Any person who is of sound mind and not a minor (below age of 18 years) may dispose of his property by making a Will.

Examples:

(i) ‘A’ is deaf, dumb and blind, but knows what he is doing by making a Will. ‘A’ can execute a valid Will;

(ii) ‘A’ is very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property. ‘A’ can execute a valid Will;

(iii) ‘A’ executes an instrument purporting to be his Will, but he does not understand the nature of the instrument, or the effect of its provisions. ‘A’ has not executed a valid Will;

(iv) ‘A’ executes an instrument purporting to be his Will while he was intoxicated and not in a state of mind of knowing what he is doing. ‘A’ has not executed a valid Will.

Will is as important for a person not owning a lot of assets as compared to a wealthy person owning a lot of assets. There is no specific time for making a Will. A person may make it any time after he attains 18 years of age. Following are a few good reasons of having a Will in place:

(i) To distribute one’s assets as the testator may deem fit as per his wishes and not as per applicable succession laws;

(ii) To avoid any dispute in family with respect to distribution of assets after the testator’s death;

(iii) To save time and money by gaining access to the assets as per the Will of the testator instead of going through court procedure for succession; etc.

A Will can be made on plain paper by the testator briefly describing his property (immovable and movable) and clearly setting out the manner in which such property should be devolved after his death. It is not necessary that any technical words or terms of art be used in a Will, but only that the wordings are such that the intentions of the testator can be clearly known therefrom.

(i) A testator is required to sign or affix his mark to the Will, or arrange for someone else to sign in his presence and by his direction;

(ii) The signature or mark of the testator, or the signature of the person signing for him, is required to be so placed that it appears that it was intended thereby to give effect to the writing as a Will;

(iii) The Will is required to be attested by two or more witnesses in the presence of the testator.

Executor is a person appointed by the testator to execute his last Will after his death.

An administrator is a person appointed by a competent authority to administer the estate of a deceased person when there is no executor.

Anyone can be an executor. It is can be a person who the testator trusts, a close friend, a nominee, or the beneficiary itself, anyone which the testator would like to get involved in distribution of his property after his death.

No, a Will has no effect during the lifetime of the testator. It can only be enforced after the death of the testator.

A Will can be revoked or altered by testator at any time when he is competent to dispose of his property by Will.

A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such act which takes away the free agency of the testator, is void.

Examples:

(i) ‘A’ threatens to shoot ‘B’, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of ‘C’. ‘B’, in consequence, makes a bequest in favour of ‘C’. The bequest is void as the making of it having been caused by coercion;

(ii) ‘A’, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void;

(iii) ‘A’, being a prisoner by lawful authority, makes his Will. The Will is not invalid by reason of ‘A’s imprisonment.

A person is considered to have died intestate in respect of all the property of which he has not made a testamentary disposition capable of taking into effect.

Examples:

(i) ‘A’ has left no Will. Here, ‘A’ is said to have died intestate in respect of whole of his property;

(ii) ‘A’ has left a Will, whereby he has appointed ‘B’ as his executor; but the Will contains no other provision. Here, ‘A’ has died intestate in respect of the distribution of his property;

(iii) ‘A’ has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the distribution of his property.

Where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property is divided equally among those of his relatives who are in the nearest degree of kindred to him.

Examples:

(i) ‘A’ the intestate, has left a grandfather, and a grandmother and no other relative standing in the same or a nearer degree of kindred to him. They, being in the second degree, will be entitled to the property in equal shares, exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree;

(ii) ‘A’ the intestate, has left a great-grandfather, or a great-grandmother, and uncles and aunts, and no other relative standing in the same or a nearer degree of kindred to him. All of these being in the third degree will take equal shares;

(iii) ‘A’ the intestate, left a great-grandfather, an uncle and a nephew, but no relative standing in a nearer degree of kindred to him. All of these being in the third degree will take equal shares;

(iv) Ten children of one brother or sister of the intestate and one child of another brother or sister of the intestate, constitute the class of relatives of the nearest degree of kindred to him. They will each take one-eleventh of the property.

A person is not legally bound to register their Will; however, it is advisable to have it registered with the Sub-registrar under the provisions of the Indian Registration Act, 1908.

Following are the two options which a person can avail in case a Will is misplaced or destroyed:

(i) If a copy or draft of Will is available, the same can be submitted for grant of Probate.

(ii) If no copy or draft of Will is available, Probate may be granted of its contents if they can be established by evidence or proofs.

Probate is a copy of Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator. It is a court-supervised process of authenticating the last Will and testament of the deceased person.

Probate is necessary in the following cases:

(i) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were under the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay;

(ii) to all Wills and codicils made with respect to the immoveable property situated within the above territories or limits even though they may be made outside the above territories and limits,

(iii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.

It is an instrument made in relation to a Will - explaining, altering or adding to its dispositions. It is be deemed to form part of the Will.

Probate of a Will cannot be granted until after the expiration of seven clear days from the day of testator’s death.

Probate of a Will when granted establishes the Will from the death of the testator, and renders valid all intermediate acts of the executor.

In a case where Probate is mandatory however, the same has not been obtained; the title to the property of the deceased will not vest in the beneficiaries

Registration of a Will does not substitute the legal requirement of procuring a Probate in cases where Probate is mandatory.