You are on page 1of 3

All about Wills

Do you intend to make a Will ? If the answer is yes then you must read this. A Will is a
legal declaration by the testator expressing his intention with respect to his property which
he desires to be carried into effect after his death. In simple words the maker of the Will
expresses his intentions about distribution of his property amongst his
sons/daughters/relatives/friends when he is alive but it Will come into effect only after his
death.

The person who makes the Will is called Testator and the person who inherits property under a
Will is called the legatee or beneficiary. Some times it is quite common to find the name of a heir
or family friend or a family lawyer who Will be named as Executor in the Will. Such named
executor is given the responsibility to carry out the intentions of the maker of the Will to
minimize the disputes amongst the beneficiaries. He clarifies to the beneficiaries the real
intentions of the testator. Will can be executed by any person who is not a minor and who is of
sound mind. Even a married woman, blind and deaf person can also execute a Will so long as
they are aware of what they are doing.

Will can be executed in any language and there is no prescribed form for execution of a Will. It
need not be executed on a stamp paper. However certain legal requirements are to be kept in
mind while drafting a Will and to make it a valid Will. The language used must be simple and
unambiguous and property to be bequeathed must be described accurately. It must be ensured
that Will is initialed by the testator on all pages and last page is signed in full to avoid any
controversy as to its contents. A Will must be signed by the testator and his signature must be
attested by two witnesses. In other words the witnesses should sign in the presence of each other
and in the presence of the testator. If there are any corrections in the body of the Will, it is
advisable that such corrections are authenticated by signature.
It is quite usual to find a declaration in the Will “ I have made this Will out of my free Will and
I am in sound health and in complete understanding of the dispositions, directions and
statements made herein” This kind of declaration conveys that the maker of the Will is in good
health and there is no pressure or compulsion on him when he made

Legatees/beneficiaries are often kept in dark about the Will and disposition of the property. The
main reason for such secrecy is that maker of Will have to face hostile the behavior of the
aggrieved legatees when he is alive. We hear some times, the makers of Will leaving their
properties for the benefit of peons or charitable organizations depriving the right to is own sons
and daughters who abandon during illness of the testator. The famous Priyamvada Birla’s Will
which surprised every body when she left her legacy to Lodha’s family in Kolkata. The Wills are
always surrounded by secrecy and controversies. Some times Legatees/beneficiaries are
beneficiaries produce/make false Wills only to contest genuine Wills. That is why Wills are
drawn in consultation with Lawyers/close friends in whom the maker of Will reposes confidence.
The Indian succession Act,1925(the Act) applies to Wills and it classifies Wills into two
categories namely privileged Wills and unprivileged Wills. Privileged Wills are those which are
executed as per the provisions of Section 63 of the Act. Usually privilege Wills are made by
soldiers, airmen, mariner engaged in war. In the case of privileged Wills some exceptions as to
witnesses or signatures of are made. If the Will is executed in hand writing of the testator, it is
enough and need not be singed by the testator or witnessed. They are still considered as valid. If
another person writes for soldiers or mariner under their instructions, they are still valid provided
they are witnessed and need not be signed

As per Section 17 Registration Act, all instruments involving transfer of immovable property
having the value of Rs. 100 and above must be compulsorily registered, Registration of Will is
not compulsory although it may involve immovable property. But it is desirable that Will should
be registered as it Will lend credibility to the document as genuine and prevents any dispute as to
whether the document being the last Will. The testator and witnesses must be present before the
Registrar or Sub Registrar to register the Will. A nominal fee has to be paid for registration of
Will. The registration of Will proves that testator and witnesses appeared before the registration
authorities and Will is registered after the identity of the parties is established. The chances of
altering or tampering with the document are totally eliminated.

So next time when you intend to make/execute a Will, please keep the above requirements in
mind.

Now let us understand why probate is necessary. Section 213 of the Indian Succession
Act,1925(the Act) provides that an Executor or legatee can not establish his right under a Will in
any court unless a probate of Will is obtained. Section 213 is not applicable to wills made by
Mohammedans.

Probate means copy of the Will certified under the seal of a court of a competent jurisdiction. In
a proceedings for grant of probate or letters of administration, title is not decided and hence
such decision of the court can be challenged any time. Probate of a Will when granted
establishes the genuineness of the Will and the person in whose favour probate is granted will be
in a position to convey the title arising out of the Will. Probate of will, is necessary only in the
case of Wills made any Hindu, Buddhist, Sikh or Jains where such wills come under the class
specified under Section 57 of the Act.

As per Section 57 of the Indian Succession Act,1925, a Probate of Will is necessary in case of
Wills made by any Hindu, Buddhist, Sikh or Jain where such Wills are made in territories subject
to the Governor of Bengal or within local limits of ordinary civil jurisdiction of high courts of
Madras and Bombay.

Similarly Probate is also necessary, even if the Will is made outside those specified territories
but immovable properties stated in the Will are situate in the specified territories namely Bengal,
Madras and Bombay. In other words, probate is not necessary when the Wills are executed out
side the specified territories and both immovable and movable properties are also situated
outside the specified territories. In cases where probate is not necessary, legal representative has
to obtain succession certificate to collect the debts or securities left by the deceased.

Then what is the difference between a probate and succession certificate. A probate is issued by
the court, when a person dies testate i.e. having made a Will and the executor or beneficiary
applies to the court for grant of probate. In case a person has not made a Will, his legal heirs will
have to apply to the court for grant of a succession certificate which will be given as per
applicable laws of inheritance. Probate can be granted only to the executor appointed and named
in the Will.

Where the deceased is a Hindu, Muhammadan, Buddhist Sikh or Jain or an exempted person and
has died intestate( without leaving a Will), the court may grant letters of administration of his
estate to any person, who according to the rules for the distribution of the estate applicable for in
the case of such deceased would be entitled to the whole or any part of such deceased 's estate.
When several of such persons apply for such administration, it shall be the discretion of the court
to grant it to any one of them. When no such person applies, it may be granted to a creditor of the
deceased.

Letters of administration is also granted to executor/ legatee in the case will, which entitles the
administrator to all rights belonging to the intestate as effectively as if the administration has
been granted at the moment after his death. They however do not render valid any intermediate
acts of the administrator causing the damage of the intestate's estate.

For obtaining probate/letters of administration, the Executor/beneficiary has to apply to the court.
The court on receiving satisfactory proof of valid execution of the Will issues letter of
administration to the beneficiary. The application for probate/Letters of administration has to
contain the details such as a) time of the testator's death b) confirmation to the effect that the Will
was duly executed and annexed ii his last Will and testament of Testator, c) the details of
amounts/ assets which are likely to come to the petitioner's hands, and the petitioner is the
executor named in the Will. The court issues notice to the kin of the deceased and also to the
General public to file their objections and on being satisfied as to the genuineness of the
Will Court issues probate/ letters of administration.