[*The relevant sections of the Indian Succession Act, 1925 have been mentioned in brackets]

Drafting of Wills

1. What is a will?

Will means 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. [S. 2(h)]

2. Who can make a will?

Any person above the age of 18 and of sound mind can make a will.

However, a will cannot be made while in a state of intoxication, illness or other such condition that results in the person not knowing what he is doing. [S. 59]

3. How to make a will?

A will can be made on plain paper by the testator/testatrix briefly describing his/her property (immovable and movable) and clearly setting out the manner in which such property should devolve after his/her death.

It is not necessary that any technical words or terms be used in a will, but only wording be such that the intention of the testator can be known therefrom. [S. 74]

4. Does the will have to be in English?

No. It can be in any language. [Section 277]

Drafting Wills and Probate

5. Does the will have to be stamped and/or registered?

No. A will need not be written/typed on stamp paper. It can be hand written/typed on plain paper.

A will does not require to be registered with the office of Sub-Registrar. It is optionally registrable under Section 18 of the Registration Act, 1908, i.e. it is the choice of the person making the will (testator/testatrix) whether to register it or not.

6. Who is an executor?

An executor means a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided. [S. 2(c)]

7. What is the role/duty of an executor?

An executor is required to do all such acts as may be necessary for the proper care or management of any property belonging to the estate administered by him. An executor is responsible for collecting/recovering amounts due to the deceased, paying amounts owed by the estate of the deceased, initiating probate proceedings, proving the will and eventually, ensuring the transfer of title from the estate of the deceased to the legatees.

8. What should be kept in kind while naming an executor?

An executor should preferably be a few years younger than the testator/testatrix so that in the ordinary course, the executor would outlive the testator and be able to perform the aforesaid duties and responsibilities.

9. Can the executor also be a legatee?

Yes.

10. Who is an attesting witness?

An attesting witness is a person in whose presence the testator signs his will. A will must be attested by two or more witnesses. [S. 63]

11. What should be kept in mind while choosing attesting witnesses?

Attesting witnesses should preferably be younger than the testator so that in the ordinary course, they would outlive him and be available to testify.

12. Can attesting witnesses also be legatees?

No. Neither an attesting witness nor his/her spouse can be a legatee. If a bequest is made in favour of an attesting witness or his/her spouse, such bequest will be void. However, it does not render the will insufficiently attested. [Section 67]

13. Can a will be revoked or altered?

Yes. [Section 62]

14. Can a person deal with/transfer/dispose of assets mentioned in his will, during his lifetime?

Yes. A will takes effect/comes into operation only on the death of the executant of the will. Therefore, a person can continue deal with his assets in any manner he deems fit during his lifetime.

Eg. Mr. A makes a will today bequeathing one residential flat, 100 shares in X company and bank account with XYZ Bank of Rs. 10,00,000/- in favour of his son. After making of such will, if the need arises or Mr. A deems fit, he may sell/gift/mortgage or deal with the flat in any manner he deems fit. Similarly, he can choose to sell/gift the shares and use the money lying in the bank account.

15. What happens if a will is misplaced or destroyed?

If a will is misplaced or destroyed and a copy or draft is available, the same can be submitted for grant of probate. [S. 237]

If a will is misplaced or destroyed and no copy or draft is available, probate may be granted of its contents if they can be established by evidence. [S. 238]

16. What happens if a person dies without making a will?

If a person dies without making a will, his estate will be governed by and devolve in accordance with the personal law applicable to him.

Eg. If a Hindu, Buddhist, Sikh or Jain dies without making a will, his/her estate will devolve upon his/her heirs in accordance with the provisions of the Hindu Succession Act, 1956.

17. What laws govern making of wills?

The Indian Succession Act, 1925 is the consolidating law applicable to testamentary succession.

Probate

18. What is probate?

Probate means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator. [S. 2(f)]

19. When is probate necessary?

Probate is necessary in the following cases:

If the will has been made by a Hindu, Buddhist, Sikh, Jain or Parsi within the local limits of the ordinary original civil jurisdiction of the High Courts at Bombay, Madras and Calcutta; or

If the will has been made by a Hindu, Buddhist, Sikh, Jain or Parsi outside the above territories but pertains to immovable property situated within such territories. [Sections 57, 58 and 213]

20. Does a registered will have to be probated?

Registration of a will does not circumvent/substitute the legal requirement of obtaining probate in cases where probate is necessary/mandatory.

21. What is the effect of obtaining probate?

Probate of a Will when granted establishes the Will from the death of the testator, and renders valid all intermediate acts of the executor as such. [S. 227]

22. What is the effect of not obtaining probate?

Where probate is necessary/mandatory and not obtained, the title to the property of the deceased will not vest in the legatees. It will also make it difficult for the executor and legates to deal with the property.

23. Is there a time limit for applying for probate?

No.

However, it is advisable to apply for grant of probate as soon as maybe possible and practicable from the date of death of the testator/testatrix to avoid the estate of the deceased falling into disuse/disrepair and to better the chance of the executor and attesting witnesses being available to perform their duties.

24. What is a Deed of Transfer?

A deed of transfer is a document that transfers legal ownership from the estate of the deceased to the legatee after probate has been obtained.

A deed of transfer is executed by the executor in favour of the legatee. It is executed with respect to immovable properties only. Payment of stamp duty and registration of such document is required.

Author Bio

Qualification: LL.B / Advocate
Company: N/A
Location: Mumbai, Maharashtra, IN
Member Since: 22 Oct 2020 | Total Posts: 1
I can be reached at my email id - nazaqat.lal@gmail.com or on my mobile number - 9820839039. View Full Profile

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10 Comments

  1. P. Achary says:

    A really nice article in Q & A form and that too in Covid period when uncertainty exists in everybody’s mind.
    My questions:
    Q.1 Is it necessary to get will notarised? When registration with Sub registrar is not mandatory.
    Q.2 If a flat in cooperative society in Mumbai and in joint names, simply death certificate will not be enough to transfer the flat in name of other joint holders/owners ?
    Request to reply.

    1. Nazaqat says:

      Thank you for your feedback and questions.
      1. It is not compulsory to get a will notarised in India.
      2. A death certificate will not suffice. Both/all joint owners must make a will setting out the manner in which their share in the flat shall devolve after their death.

  2. vswami says:

    OFFhand:
    “A DEED OF TRANSFER is executed by the executor in favour of the legatee. IT IS EXECUTED WITH RESPECT TO IMMOVABLE PROPERTIES ONLY. PAYMENT OF STAMP DUTY AND REGISTRATION OF SUCH DOCUMENT IS REQUIRED.”
    FONT to focus : This , it appears, is quite confusing in more than one respect.
    For what one knows:
    In the eyes of law, a formal transfer ( a deed of conveyance) etc., is a MUST, rather possible, only when a person is alive; it is/ could not be so, in the case of ‘succession’ to property on his demise. Except in a case in which the person while alive executes a ‘deed of settlement’ .
    For instance, that is why in the definition of ‘TRANSFER’ , in the Income-tax Act , it is specifically excluded; for, it is regarded as ‘passing of property’ (known as its ‘transmission’ to the named beneficiary ) , as opposed to ‘transfer’ within its legal meaning for almost every purpose.
    May be the Author wish to elaborate and enlighten the not-so-knowledgeable subscribers to this website.
    Incidentally, going by memory, there are certain other related aspects on which thoughts / viewpoints may be found to have been shared ! Suggest a diligent Google search !!
    courtesy

    1. Nazaqat says:

      Thank you for your question and the opportunity to clarify/elaborate. As you rightly mentioned, the term ‘transfer’ is used in the context of a conveyance of an existing property by one living person to another (transfer inter vivos). On the other hand, a will does not involve or effect any transfer inter vivos but is the expression of the testator to be carried out into effect after his death.
      In cases where obtaining probate is mandatory, after the probate has been granted by the court, a further document is required to be executed with respect to the immovable properties of the testator. This document is incidentally called Deed of Transfer. It is executed by the executor appointed under the will in favour of the legatee.

    1. Nazaqat says:

      As mentioned in response to an earlier comment, it is not compulsory but advisable to get a doctor’s certificate on the same date as making of the will or a day or two prior. This is advisable so that if in the future, there is a dispute raised regarding the health and mental soundness of the testator at the time he made his will, the doctor’s certificate will be helpful.

  3. Vijay B kulkarni says:

    Kindly explain whether in addition to witness, sign with seal of doctor ( to prove person in sound mind while singing will) is must

  4. ulhas chitharia says:

    Madame ji , Very happy to read an exhaustive article about WILL & Probate . Because It is in Q & A form which makes it easier to understand and absorb . I want to ask you a question .
    While making a will Is it mandatory to get a Psychiatrist certificate for senior citizens ?

    1. Nazaqat says:

      Thank you for taking the time to read it. A psychiatrist’s certificate is not mandatory. However, it is advisable to get a doctor’s certificate – usually the family doctor’s as on the date of making the will or just a day or two prior stating the person’s health condition. This becomes useful if in the future a dispute is raised by family members or others that the person making the will was not in good health or sound mind to know what he was doing.

    2. Nazaqat says:

      Thank you for taking the time to read it. A psychiatrist’s certificate is not mandatory. However, it is advisable to get a doctor’s certificate – usually the family doctor’s as on the date of making the will or just a day or two prior stating the person’s health condition. This becomes useful if in the future a dispute is raised by other members that the person making the will was not in good health or sound mind to know what he was doing.

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