A Will can cause disaster to a person’s right to inherit, if not properly constructed or not proved successfully as per the wishes of the testator. A look at all important aspects relating to a Will…
A Will is a legal declaration of the intention of the testator with respect to his property, which he desires to take into account after his death. One may deprive his close family members from inheriting a property by a Will, which may include even his sons and daughters. A Will may be executed even for the benefit of others including animals. However, a document cannot be termed as a Will, if it neither disposes the property of the executant nor comes into effect on and after his death.
The testator must make the declaration or disposition in a sound state of mind, fully aware of his actions and approving them. A minor is incompetent to make his Will. Since a Will comes into operation after the death of the testator, it is revocable despite the testator declaration to be irrevocable. Thus, a person may make any number of successive Wills. The testator may appoint or name a person to act as the executor of his Will to give effect to his last wishes, as expressed in his Will.
A person may make a disposition of his self-acquired property under a Will. The Hindu Succession Act, 1956 empowers a Hindu to make a Will, even though his undivided interest in the joint-family property. However, testamentary power of Mohammedan is limited, not only as regards the beneficiary as to whether he is an heir or a non-heir, but also as regards the subject matter of bequest.
A Will may be executed even on plain paper. There is no particular form in which a Will is made. However, it must clearly express the intention of a testator and the subject of bequest is under his power, disposition and fulfilling other characteristics, as mentioned above. Registration of a Will is not compulsory and non-registration does not affect its genuineness or authenticity.
A registered Will stands on a better footing than an unregistered Will, as the registration of a Will in itself is a big circumstance in proving its genuineness. The onus of proving the genuineness of the Will is on the propounder of Will. He has to prove that there were no suspicious circumstances existing at the time of execution of the Will.
Once he proves that the testator signed the Will in a sound disposing mind; that he understood the nature and effect of disposition and had put his signature out of his own free will, that he signed the Will in the presence of witnesses, who attested the Will in his presence and in presence of each other, the onus of proving a Will is said to have been discharged by the propounder. If any person pleads the Will to be a forged one or to be the result of fraud or collusion or undue influence, the onus to prove the same shifts on him and in case of the failure to discharge the said onus, such challenges must fail.
A petition for seeking probate of the Will may be filed through the executor or a legatee in the court with competent jurisdiction, according to the procedures provided under the Indian Succession Act, 1925. It can be said that if a Will has to be proved, it has to be by way of seeking probate of the Will.
A probate in law means that a copy of the Will is certified under the seal of a court of competent jurisdiction with a grant to administer the estate of the testator. As per law, it is not mandatory to obtain probate of a Will except in the Presidency Towns of Bengal, Madras and Bombay. The jurisdiction of the Probate Court is confined only to the genuineness of the Will and a question of title, right and interest of any other person, arising in such proceedings is beyond its domain.
In initiation of probate proceedings, an executor has an important role to play, as he is the creature of the Will, who is casted with a duty by the testator himself. All the property of the testator vests in the executor, immediately after the death of the testator. He can exercise his powers as executor and acts in terms of the Will, even though probate of the Will is not granted.
An executor cannot be removed by the Probate Court, unless there is clear evidence that his continuance as an executor would be detrimental to the estate of the testator and frustrate the Will of the deceased testator. In the absence of an executor or otherwise, a person, appointed to act as an administrator to administer the estate of the deceased testator, can only act after his death.
Such appointment is made by the order of the court and his title to administer the estate of the deceased testator vests in him only on the issue of the letters of administration by the Probate Court.
The Indian Succession Act, 1925 empowers and talks about issuing citations to enable all such persons, who claim to have any interest in the estate of the deceased testator, to see the probate proceedings before the grant of probate and if necessary, to oppose the same. Such persons, to whom citations have been issued whether general or special, may file a caveat. However, it is not that anybody and everybody, who intends to oppose the grant of probate, would be entitled to lodge caveat. They must be those persons, who have an interest in the estate of the deceased and such interest would not have the effect of destroying the estate of the testator itself.
Thus, a probate once obtained, constitutes legal evidence of the Will being genuine. Nevertheless, there may be instances and situation, when the grant or probate or letters of administration may be revoked or annulled. For instance, it is realised subsequently that the court, which granted the probate; had no jurisdiction to grant the same or that after the probate has been granted a subsequent Will of the testator is discovered, or that the grant was made without citing the parties, who ought to have been made a party, etc.
The Indian Succession Act, 1925 empowers the persons, adversely affected by the grant of probate, by showing ‘just cause’ to seek revocation or cancellation of probate or letters of administration.
No doubt that the judgment rendered in a probate proceedings is a judgment in rem and the grant of probate or letters of administration is effective throughout the state in which the same is granted. In certain circumstances, as mentioned in the Indian Succession Act, 1925, it is effective throughout India. Thus, a grant made in India, in respect of a property situated in foreign country, has no effect in that foreign country.
Conversely, a grant obtained in a foreign country, in respect of a property situated in India, has no effect in India. Also, necessary proceedings for obtaining letters of administration in law are required to be initiated for that purpose.
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