Law and Practice relating to Wills

Artcle explains Succession, Testamentary Powers and Succession, Intestate Succession / Inheritance , Law of Testamentary Succession, Meaning / Definition of a ‘Will’ , Importance of making a Will, Issues of Heirs in case of Inheritance , Important Terms relating to a Will, Attestation of Will / Attesting Witnesses , Bequests : Alternative / Residuary; Lapse of Legacy , Revocation of a Will by Testator, Registration of Wills , Wills under Muslim Personal Law , Properties : Subject-matter of Will and Obtaining the Probate of Will.

Succession

Property cannot remain ‘ownerless’, even for a moment, and therefore, on the death of its owners, it must immediately vest in someone; and here, the question, as to who would be the owner of the property, after the death, is answered by ‘law of succession’. Under the Law, a ‘succession’ is usually divided into the ‘testamentary succession’ and ‘intestate succession’.

Testamentary Powers and Succession

The property can be dealt-with in any manner, by its owner, during his ‘lifetime’; however, the law of ‘testamentary succession’ enables him, to exercise his freedom even after his ‘death’. He has the freedom to lay down the ‘scheme of distribution’ of his property, according to his own choice, under his ‘Will’. And, if his ‘Will’ is valid, and if it lays down the ‘scheme of distribution’ of property, and if he has not infringed any provisions of law, then his ‘scheme of distribution’ would be given ‘effect’ to. During his lifetime, he also has freedom to ‘change, modify or rescind’ his Will, as many times as he wishes, before his death, thereby making ‘another Will’. Ordinarily, the ‘last Will’ of a testator would repeal (i.e. revoke) all his ‘earlier wills’.

Law grants the owner ‘full freedom’ to give his property, after his death, to any person, such as, to his wife, daughter, servant, friend, a school, a hospital, a temple, an institution, or even to his concubine. Here such freedom is also available to a ‘female owner’. However, in case of a ‘Muslim person’, there are certain ‘restrictions’ for disposing of property by way of Will. Thus, in short, the owner can give the property to any person, which may include relatives or non-relatives, or an institution, charitable or commercial. This he can do so, under ‘law of testamentary succession’, i.e., he can make a ‘Will’, and there-under he can lay down a ‘scheme of distribution’ of his property, taking effect after his death; and, so long as, he conforms to certain formalities, such as, attestation of the Will by two competent witnesses, he has the freedom to give the property to any person.

Intestate Succession / Inheritance

When such owner dies ‘without’ making a ‘Will’, then his property is to be distributed among his relatives. His relations with them may be ‘by blood’ or ‘by marriage’. In other words, in such cases, a ‘non-relatives’ are not entitled to any share in the property of the deceased owner. The relatives, who are entitled to succeed to the property, on the intestacy (i.e. owner dying without making Will), are known as ‘heirs’. Here, who are the ‘heirs’ of a person, and what ‘share’ they will take in the property, are questions, which relate to the ‘Personal Law’ applicable to the deceased person. When a person dies ‘without’ making a Will, or if, in case he had made a Will,(but) his ‘Will’ is found to be ‘invalid’, then his property devolves by the rules of ‘intestate succession’. The law of ‘intestate succession’ is properly called as the ‘law of inheritance’. The law of ‘intestate succession’ is concerned with the question of determining, as to among the relations of the deceased, who are his ‘heirs’, i.e., who are those relations, who are entitled to take his property, and what will be the ‘share’ of each heir, i.e., in ‘what manner’ and in ‘what proportion’ property is to be distributed among the heirs. If in case a ‘deceased person’ had left ‘no’ relations, then, under the personal laws of all communities, the ‘State’ inherits such property under the principle of ‘escheat’.

Law of Testamentary Succession

In India, every community has its own ‘personal law’; the Hindus, the Muslims, the Christians, the Parsis and the Jews are each governed by their own separate personal laws, in all their personal matters, such as, marriage, divorce and succession. A Sikh, a Buddhist, a Jain or a Hindu is called a ‘Hindu’, because the same personal law applies to him.

The ‘testamentary powers’ of a Hindu is governed by the ‘Hindu (Personal) Law’. The “Indian Succession Act, 1925” does not deal with ‘substantive law’, such as, what property may be transferred. This ‘Act of 1925’ primarily deals with the ‘formalities’, related to the execution, revocation and interpretation of Wills, the grant of probate, and with powers and duties of the executors and administrators.

The Law of ‘Testamentary Succession’, i.e. law relating to Wills, of the Hindus, Christians, Parsis, Jews and others (other than Muslims) is almost uniformly contained in the “Indian Succession Act, 1925”, with some modifications as regards to Hindus. Here, for the purposes of Law, the word “Hindus” also includes ‘Sikhs, Buddhists and Jains’ besides the Hindus.

Meaning / Definition of a ‘Will’

A ‘Will’ is an instrument (i.e. document), by which a person makes a disposition of his property, which is intended to take effect after his death. A ‘Will or testament’ is a declaration, in a prescribed (i.e. legal) manner, of the ‘intention’ of the person making it, with regard to the matters, which he wishes to take effect upon or after his death.

Any such person, who is of ‘sound mind’, and who is ‘not a minor’, can execute his or her ‘Will’. Here, it is to be noted that, such person may be very sick or ill, i.e. of unsound health, but, at the moment of execution of Will, he must be of sound mind. It means that, he must have capacity to realize or understand, as to what are his properties, who are near and dear to him, in whose favour it would be better to dispose of property, etc. In short, any such person, making a Will, must be able to know the nature of his acts and its consequences. And therefore, it is safe practice that, the ‘instrument of Will’ has to be appended with the ‘medical certificate’ of such ‘doctor’, who, after actual examination of such person (making a Will), certified that, such person is in ‘good and sound state of mind’, although he may not in ‘physically sound condition’ as the case may be.

The outstanding feature of a Will, which distinguishes it from other instruments (like a Gift-deed), is that, it is an essentially ‘revocable’ instrument (i.e. document). A Will is revocable, at any time during his ‘lifetime’, by the testator (i.e. person, who makes a will) before he dies. Whereas, the ‘transaction of gift’, once made by the donor and accepted by the donee, is full & final, and then, it cannot be revoked by the donor, in the sense that, he cannot claim-back the gifted-property from the ‘donee’ (i.e. the person, to whom, gift is made).

It is ‘not’ necessary, for any ‘testamentary document’, to use any ‘special / technical words’, or to have any ‘special form’. However, the ‘wording’ must be in such manner that, the ‘intention’ of the testator can easily or clearly be known therefrom.

Importance of making a Will

A ‘Will’ is the ‘declaration’, by the ‘owner’ (of property), as to ‘how’ his property is to be ‘disposed of’ on or after his death. Such declaration (i.e. Will) takes effect only on or after the death of such owner, and so, it may be ‘revoked’ anytime during the ‘lifetime’ of such owner. Ordinarily, in the absence of Will, upon the death of any person (owner), his ‘all property’ naturally and automatically devolves, by effect and operation of Law, i.e. as per the ‘Rules of Inheritance’, upon his own (all) ‘heirs’. But, when such person does not wish that, his property should naturally devolve ‘merely’ upon his ‘heirs’, or, if he does not wish that, his ‘each and all’ property should devolve only upon his own ‘heirs’, then in such cases, he may dispose of his all or ‘any part’ of his property, as per his own ‘wishes’, thereby making the Will. In other words, if any person wishes that, after his death, his property, or at least its part, should be given to any ‘particular person’ of his own ‘choice’, which may include any ‘stranger person’, and not necessarily his own heir, then he can fulfill his wish thereby making a Will.

Now take the case of one such man, who was initially belonging to vey poor family. Since he was having good talents, one ‘charitable organization’ provided him ‘financial support’ for his ‘higher education’. Thereafter, his then one ‘wealthy friend’ helped him for ‘establishing his businesses’. On such background, said man, with his tremendous efforts, later on, earned lot of income and properties (including immovable property). Now said man became ‘aged’ and often becomes ill. He has one ‘young married son’, who does not take any care of his own aged parents. Besides, said man also has one ‘married daughter’, who is ‘very poor’, but who, along with her poor husband, takes lot of care of her aged parents. That, his said ‘wealthy friend’ is already ‘died’, but whose son is now in financial crises. Now suppose, because of his feelings of ‘affection’ towards his ‘poor daughter’, said man wishes that, some ‘larger share’ of his property should go to her, than that of his son. Besides, because of his feelings of ‘gratitude’ towards his pre-deceased ‘then wealthy friend’, he wishes that, some part of his property should go the said ‘son of his friend’. Besides that, since said man believes that, said ‘charitable organization’ has been doing great work for the society, he wishes to ‘donate’ some of his property to said organization. So here, ‘how’ can he fulfill his all such ‘wishes’? Here, one option is to make the ‘gifts or donations’ during his ‘lifetime’ itself. But, for making such gifts, especially of any ‘immovable property’, it requires ‘lot of expenses’ towards stamp-duty and registration charges. Besides that, if he makes such gifts, now at present moment, then he will be ‘deprived of’ from the ‘enjoyment’ of his property during his ‘remaining lifetime’. Further, if he gifts now a ‘larger share’ of his property to his ‘daughter’, then his said careless son will start ‘quarrels’ with his own parents and sister. Hence here, this option of making ‘gifts’ is not good or proper. Therefore he should make a ‘Will’.

Issues of Heirs in case of Inheritance

Suppose, if any male-person, particularly a Hindu, Sikh, Buddhist or a Jain, dies intestate, i.e. without making a Will, then his absolute property, devolves ‘firstly’, upon all his ‘preferential heirs’, i.e. ‘Class-One heirs’, which includes now ‘Sixteen categories of relatives’, who, if all surviving the deceased, shall have the right, to inherit, or to take such property in succession, ‘together and simultaneously’. For instance, the ‘fourteenth category’, of such ‘preferential (class-one) heirs’, is the “Daughter” of a ‘pre-deceased daughter’ of a ‘pre-deceased daughter’, and the ‘sixteenth category’, of such heirs, is the “Daughter” of a ‘pre-deceased daughter’ of a ‘pre-deceased son’, of the ‘deceased person’, whose property is now subject of ‘devolution or inheritance’. And, in the ‘absence’ of such ‘Class-one heirs’, i.e. when, behind such ‘deceased person’, ‘not’ even any ‘single heir’, out of those ‘sixteen categories of relatives’, is surviving, then his property devolves ‘secondly’, upon his those relatives, which are known as ‘Class-Two heirs’, and which includes ‘Nine groups of heirs’ consisting of many relatives. For instance, the ‘Father’ of such ‘deceased person’ is one of such ‘Class-two heirs’. Therefore, now suppose, if such ‘deceased Hindu male’ is survived by only ‘two relatives’, namely, his ‘father’, and other one is his pre-deceased daughter’s pre-deceased daughter’s “daughter”, i.e. his ‘great-granddaughter’, then in such situation, his ‘all property’ would devolve ‘only’ upon such ‘great-granddaughter’ thereby totally ‘excluding’ the ‘father’ from inheritance. And, this is the problem of ‘intestate succession’, i.e. where a person dies ‘without’ making any ‘Will’. Besides that, since there are so many heirs, in reality, often ‘dispute’ arises, regarding the ‘preference of share’ and ‘quantum of share’, in the ‘distribution of property’ of such deceased person in case of ‘inheritance’. Today, number of litigation (court-cases) is pending, for many years, between the brothers and their ‘married sisters’, regarding succession or inheritance of property of their ‘deceased father’. Hence, all such problems, disputes or litigation, can simply be avoided, if a person makes a Will for disposition of his property.

Important Terms relating to a Will

Testator : A person, who makes the Will. He is the person, whose property is to be disposed of, after his death, in accordance with the directions specified under the Will.

Legatee / Beneficiary : A person, to whom the property will pass under the ‘Will’. He is the person, to whom the property of the testator would be bequeathed under the Will.

Bequeath : The act of making bequest.

Bequest / Legacy : The property or benefits, which flow under the Will, from the testator’s estate to the beneficiary.

Estate : The property of the testator ‘remaining or left’ after his death.

Witnesses : The persons, who are the ‘eye-witnesses’ of the ‘fact’ of ‘singing of the Will by the testator’.

Executor : The person, who would administer the estate of the ‘testator’, after his death, in accordance with the provisions / directions under the Will. He is appointed by the ‘testator’ himself under / by his Will. Executor has to act like a ‘trustee’. Besides, even any such ‘legatee’, who undertakes to carry out the wishes of a testator, will be treated as a trustee.

Administrator : The person, to whom ‘Letters of Administration’ is granted, by the ‘competent Court’, for administration of the estate of any such ‘testator’, who had ‘not’ appointed any person as an ‘executor’ under / by his Will. Such ‘administer’ can also be appointed by the Court, in cases, where the testator had appointed one person as executor under the Will, but such person ‘refuses’ to act so as executor, or he is ‘legally incapable’ to act as so, or he dies, before the ‘death of testator’, or before the Will has been ‘proved’, or before he has been able to execute the Will ‘fully’. The ‘distinction’ between an executor and administrator is that, the ‘executor’ can be appointed by the ‘testator’ under his Will, whereas the ‘administrator’ can be appointed only by the ‘competent Court’.

Probate : When the ‘competent Court’ grants ‘letters of administration’, which is annexed with the Will, then it is said to be ‘grant of probate’. Probate means the ‘copy’ of a Will, which is ‘certified’ under the seal of a ‘competent Court’, with a ‘grant of administration’ to the estate of the testator. It is the ‘conclusive evidence’ about the ‘due execution and validity’ of the Will, and about the ‘testamentary capacity’ of the testator.

Attestation of Will / Attesting Witnesses

Attestation of the Will is a ‘mandatory (i.e. compulsory) formality’ of an ‘ordinary (i.e. regular)Will’, which is also called, in legal terms, as an ‘unprivileged Will’. The ‘execution of a Will’ includes its ‘attestation by witnesses’, and so, if there is no attestation, the Will is not validly executed. It is absolutely necessary that, the ‘attesting witness’ should sign the ‘instrument (i.e. document) of Will’.

A Will must be attested by at least ‘two’ witnesses. It is safe practice that, don’t restrict to only ‘two witnesses’, if more than two are available, for instance, if ‘four’ persons are available, then make them such ‘attesting witnesses’. Often, the ‘disputes or litigations’ get created, regarding the ‘due execution’ and validity of a Will, after the ‘death of testator’. So, before giving any effect to such Will, it is necessary to ‘prove’ its ‘valid execution’ before the Court. Since now, the ‘testator’ is ‘dead’, he cannot be called now, as a witness ‘before the Court’, to prove due execution of his Will. Hence, everything depends now upon the ‘attesting witnesses’, through whom only such ‘due execution of a Will’ can be ‘proved’.

While ‘selecting’ the persons as attesting witnesses, a ‘credibility or reliability’ of them is very important factor. They must be such persons, who also think and insist that, the ‘wishes’ of the ‘deceased testator’ should get fulfilled. Besides that, the ‘age-factor’ of such ‘attesting witnesses’ is also important. Generally, such persons should comparatively be of the ‘younger age’ than that of the ‘testator’, otherwise, it may happen that, such ‘witness’ dies before the testator. Such ‘witnesses’ must also have capacity to depose or to testify (i.e. to face the examinations) before the Court.

Here, it is suggested that, professionals like ‘CA or advocates’, who have ‘drafted’ any such Will for their ‘client’, should avoid themselves from becoming the ‘attesting witnesses’ of such Will, unless they act in capacity of ‘very close friend’ of such testator; otherwise, they would be compelled to face the examination, particularly the cross-examination by the ‘adverse party’, in a litigation concerning such Will, before the Court, and it creates very embarrassing situation, for all, before the Court. At the most, such professionals like ‘CA or advocates’ can become the ‘executor’ of such Will, if the testator also desires so, provided that, they must ‘not’ take any ‘legacy or benefit’ under such Will.

Each ‘witness’ must have seen the ‘testator sign’ the instrument (i.e. document) of a Will. Where the Will is ‘attested’ by only ‘one witness’, or if it not attested by any witness, then it is ‘invalid’. If attestation of the Will is not proved, then even a ‘registered Will’ is not admissible. Attesting witnesses need not know the ‘contents’ of the Will. The ‘attesting witnesses’ merely require to signify that, the testator affixed his signature in their presence. Therefore, the ‘proof of attestation’ does not mean that, the attesting witnesses knew the ‘contents’ of the Will. It is not necessary that, ‘all’ the witnesses should be present at ‘one and same time’. The testator may sign in the presence of ‘one witness’ and acknowledge his signature before another. If the Will has already been signed, then the witness, who has not seen the ‘testator signed’, must have received, from the testator, a ‘personal acknowledgment’ of his signature. However, if one of the attesting witnesses ‘proves’ the signature of the testator that is enough. Thus, the evidence of one attesting witness is sufficient to prove the Will before the Court.

Since the Wills are treated as ‘magnificent document’, they should be free from all suspicion. Therefore the law says that, any bequest, which is given to any ‘attesting witness’, or to ‘his / her spouse’, shall be ‘null and void’. But here, the bequest is that, which is given to the witness, under such Will, which is attested by that witness. However, this rule is ‘not’ applicable to the Wills made by a “Hindu, Sikh, Buddhist or Jain”. Nevertheless, it is always safe practice, to avoid giving of any bequests to the attesting witnesses.

Any such person, who is appointed as an ‘executor’ under a Will, is also competent to sign the Will as ‘attesting witness’. But in such cases, if any ‘legacy or benefit’ is provided to him, under the same Will, then, as said earlier, it again raises a suspicion. Hence, it is safe practice, to have an executor and ‘attesting witness’ to be different persons.

Bequests : Alternative / Residuary; Lapse of Legacy

There is one important rule that, a legacy will ‘lapse’, if the ‘legatee’ does ‘not’ survive the testator. Here, the expression “lapse of legacy” means that, there is ‘failure of legacy’ or ‘termination of legacy’, and so, it cannot given any effect to. Bequests, made under the Will, cannot take effect, until the ‘death of the testator’, and therefore, ‘no’ one can claim anything, under a Will, till the testator dies. If, at the moment of ‘death of the testator’, the legatee is not alive, i.e. he is not surviving behind the testator, then any bequest, provided to him, gets failed or terminated.

However, merely by reason of ‘death of legatee’ before the ‘death of testator’, such legacy would ‘not’ lapse, if the testator clearly mentions, in his Will, that, in such situation, the legacy shall be given to ‘another specified person’. Thus, if there is a apparent and clear ‘intention’ of the testator, which can be noticeable from the instrument of Will, by which, he has also provided a ‘substitute’, for a legatee ‘dying’ in his lifetime, then such ‘substitute legatee’ would take the bequest. This is called as the “bequest in alternative”.

Unless a ‘contrary intention’ appears in a Will, the property, which is subject-matter of the ‘lapsed legacy’, will become part of the ‘residue estate’ of the testator, and then, it will be included in the ‘residuary bequest’. But, where a Will does ‘not’ contain such ‘residue clause’, then said property shall go to the ‘heirs’ of the testator, as per the ‘rules of inheritance’, thereby treating that, the testator has ‘died intestate’ (i.e. without making any Will) with regards to that property.

A ‘residuary legatee’ is a person, to whom, the testator gives ‘what remains’ out of his property, after he had made all those ‘specific bequests’ that he desired to make by his Will. Thus, wherever a testator lays down that, the ‘surplus or residue’ of his estate, after the payment of his ‘debts, specific legacies and cost of administration’, shall go to the person, specified by him in his Will, then such person is known as ‘residuary legatee’, and such bequest to him is called as the “residuary bequest”. Such ‘residuary legatee’ is also entitled to get all that property, which is subject of the ‘lapsed legacies’, or which is subject of such legacies, which have ‘failed’ to take effect, as being ‘invalid or void’.

Generally, in practice, a person, who is the ‘residuary legatee’, is also appointed by the testator as an ‘executor’ of his Will.

There is no prohibition for giving legacies to the executor. But the law says that, if a testator gives a legacy to a person, in his character ‘as an executor’ of the Will, then such person can have the legacy, only if he agrees to act as executor; because, in such case, legacy is considered to have been given, on the ‘implied condition’ that, he will also act as an executor. Therefore, in other words, if he refuses to act as an executor, then he cannot claim the legacy. Thus, such executor can claim the legacy, only when he ‘proves’ the Will, with an intention of acting as the executor, or takes some steps, which clearly indicate his intention to act as executor.

Revocation of a Will by Testator

The execution of a ‘subsequent Will’ is a ‘mode of revocation’ of ‘earlier Will’. However, it is essential that, such ‘subsequent Will’ must contain, through separate clause, a ‘statement’ to the effect that, it is hereby ‘revoking’ all former Wills, if any. There is one ‘legal maxim’ that – “no man can die with two inconsistent testaments (wills)”. Therefore, in other way, it can also be said that, if ‘later Will’ does not revoke earlier Will, and when it is ‘not’ inconsistent with ‘earlier Will’, then any number of such Wills, whatever be their dates or form, can be admitted to probate, because ‘all together’ shall constitute the ‘last Will’ of the testator. Here, it is to be noted that, any ‘invalid’ subsequent Will cannot revoke earlier ‘valid Will’.

It is not necessary that, a Will must always be revoked by making ‘another Will’. Where the person, who previously made the Will, later on / now does ‘not’ have any intention to dispose off his property by ‘testamentary succession’, then he can revoke his previous Will by one ‘written declaration’, thereby expressing his intention to revoke his earlier Will(s). But here, in such case, such ‘written declaration’, must also be properly executed by such person, and ‘attested’ by at least ‘two attesting witnesses’.

However, where the testator is personally having the custody of ‘original instrument’ of his Will, and if he wants to revoke his Will, then he himself can do so, thereby simply ‘burning, tearing or otherwise destroying’ said original instrument. In this respect, there is one rule that, a duly executed Will was in the possession of the testator, but after his death it was not available, as it could not be traced or found, then in such case, it can validly be ‘presumed’ that, the testator himself destroyed it, because he intended to revoke the same.

Registration of Wills

Wills do not require registration. Even if, it is registered, ‘no’ stamp (duty) is required. Even if, a Will bequeaths ‘immovable property’, its registration is not compulsory. Here, it is to be noted that, this factor shows the ‘advantage’ of ‘disposing of’ property by way of the ‘Will’, as compare to that of transfer by way of ‘Gift-deeds of immovable property’, which compulsorily requires registration and attract heavy stamp-duty.

However, the genuineness of a Will cannot be doubted, simply because it has not been registered. Nevertheless, when the ‘testator’ himself registers his Will, then such ‘registration of the Will’ raises a strong presumption of the ‘validity of the Will’. A ‘nominal fee’ is payable for ‘registration’; in Maharashtra, presently such fee is about Rupees ‘One Hundred’ only.

However, a Will may be ‘deposited’ with the ‘registering authority’ under the ‘Indian Registration Act, 1908’. A testator may ‘deposit’ with any Registrar his Will in a ‘sealed cover’. Then, after satisfying himself about the ‘identity of the testator’, and after making necessary entries in concerned register-book, the ‘Registrar’ keeps or retains said ‘sealed cover’, containing a Will, in his ‘fire-proof box’. However, if the ‘testator’, later on, is having ‘different intention’, then he can ‘withdraw’ said ‘sealed cover’ from the Registrar; for that purpose, he has to make prescribed application to concerned Registrar. After the ‘death’ of such testator, upon application by any person, and after satisfying himself about the fact of ‘death’ of such testator, who deposited the Will, concerned ‘Registrar’ opens said ‘sealed cover’ in presence of the applicant, and then, cause the contents thereof (i.e. instrument of Will) to be ‘copied’ into his book, and after such coping, the Registrar has to re-deposit the ‘original will’. Then any person can get the ‘certified copy’ of said Will, from the Registrar, after making application and paying fees.

Wills under Muslim Personal Law

Under the Muslim Law, a Will (i.e. Wasiyyat) can be made, either ‘verbally’ or in ‘writing’. However, as it is a safe practice, where the subject-matter of the Will is ‘immovable property’, it is better to make it ‘in writing’.

Basically, under the Muslim law, a bequest in favour of any ‘heir’ is ‘not valid’. However, it can be made valid by the ‘consent’ of ‘other heirs’, and where such consent is to be obtained after the death of the testator.

Furthermore, under the Muslim Law, one cannot dispose of, by way of a Will, more than ‘one-third’ (1/3) of his ‘net estate’. Here, the ‘net estate’ means that property, which ‘remains’ after payment or satisfaction of testator’s debts owing to third persons and the ‘funeral expenses’ of deceased testator. In other words, up to such ‘one-third’ of net estate, any Muslim person is free to make a Will. This is a ‘maximum limit’ of ‘disposable property’ through the Will; and it is called as the “bequeathable third”. However, if in case, ‘more’ than this limit, property is disposed of by way of Will, then such Will is not altogether void, because it could still be validated by the ‘consent’ of ‘all the heirs’ of such person.

A Muslim woman can also make a Will.

Properties : Subject-matter of Will

While thinking about making of a Will, firstly, one must know or realize that, of what or which properties, he is an ‘absolute owner’. Such properties may be immovable or movable. Immovable properties include his ‘land and buildings’. For the purpose of ‘drafting’ his ‘instrument of Will’, such person must know the ‘exact descriptions’ of his ‘immovable property’, which shows its identity, location, area, its boundaries, its nature of holding, etc. Movable properties include his valuable goods or articles, such as jewelry, furniture, car, etc. He must prepare ‘list’ of all such items or things, which he wish to dispose of through his Will. He may also entitled to some ‘intangible properties’, for instance, he may have rights into any trademark, patent, copyright, etc. His property also includes the ‘debts’, which ‘third person’ owes to him. Besides, his property also includes his ‘investments’ into shares or debentures of a company, mutual funds, fixed deposits into bank, various kinds of insurance policies, etc. Therefore, such person must have beforehand into his possession, all those documents, which establish or show his title, ownership, interests or rights over such properties.

Obtaining the Probate of Will

Where any Will is made, by a “Hindu, Sikh, Buddhist, Jain or Parsi”, within the ‘local limits’ of the ‘ordinary original civil jurisdiction’ of the ‘Bombay High Court’, or, if it is made ‘outside’ those limits, but, when it relates to the ‘immovable property’, which is ‘situated’ in those ‘limits’, then, for ‘establishing the right’, through the Court-proceedings, as an ‘executor of Will’ or as a ‘legatee under the Will’, firstly, one has to obtain the ‘Probate of Will’ or ‘Letters of Administration with the Will’, from the ‘competent Court’. However, obtaining of such probate is ‘not’ required in case of any Will made by a Muslim or ‘Indian Christian’.

For obtaining such probate, an executor or any legatee, as the case may be, has to make an ‘application’ to ‘competent Court’; and, while making such application, he is required to pay the ‘Court-fees’ in following manner. –

Such court-fees are calculated on the basis of ‘aggregate market values’ of the properties, which are subject-matter of the Will.

Thus, in case of Maharashtra, when such ‘aggregate value’ is up to ‘Rupees Fifty Thousand’, then court-fee is ‘two per cent’ of it.

Then, for the ‘excess value’ over ‘rupees fifty thousand’, up to ‘Rupees Two Lakhs’, such court-fee is ‘four per cent’ of such ‘excess amount’.

Then, for the ‘excess value’ over ‘rupees two lakhs’, up to ‘Rupees Three Lakhs’, such court-fee is ‘six per cent’ of such ‘excess amount’.

Then, for the ‘excess value’ over ‘rupees three lakhs’ (up to whatever maximum of such amount), such court-fee is ‘seven and half per cent’ of such ‘excess amount’, but subject to the maximum of ‘Rupees Seventy-five Thousand only’.

Nevertheless, if we compare the disposition of ‘immovable property’ by way a Will with the Gift-deed, then still, ‘disposition by Will’ is much ‘less expensive’. Consider one example here. Subject-matter of such disposition is the house-property worth ‘Rupees Fifty Lakhs’, which is situated within the limits of ‘municipal corporation of Pune’. So, for transferring said property by way of ‘Gift-deed’, it attracts ‘stamp-duty’ of ‘Rupees Two Lakhs Fifty Thousand’, besides the ‘Registration-fee’ of approximately ‘Rupees Thirty Thousand’; whereas, for obtaining the ‘probate’ for such Will, which had disposed of said property, it merely attracts approximately ‘Rupees Seventy-five Thousand only’ as the ‘court-fees’.

Here, it is to be noted that, this issue of ‘obtaining of probate’ would come into picture only after the ‘death of the testator’, and not at the moment of execution of a Will itself.

(Author can be reached at hitendrashah.vakil@gmail.com)