Artcle explains Succession, Testamentary Powers and Succession, Intestate Succession / Inheritance , Law of Testamentary Succession, Meaning / Definition of a âWillâ , 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.
Property cannot remain âownerlessâ, 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 âlaw of successionâ. Under the Law, a âsuccessionâ is usually divided into the âtestamentary successionâ and âintestate successionâ.
The property can be dealt-with in any manner, by its owner, during his âlifetimeâ; however, the law of âtestamentary successionâ enables him, to exercise his freedom even after his âdeathâ. He has the freedom to lay down the âscheme of distributionâ of his property, according to his own choice, under his âWillâ. And, if his âWillâ is valid, and if it lays down the âscheme of distributionâ of property, and if he has not infringed any provisions of law, then his âscheme of distributionâ would be given âeffectâ to. During his lifetime, he also has freedom to âchange, modify or rescindâ his Will, as many times as he wishes, before his death, thereby making âanother Willâ. Ordinarily, the âlast Willâ of a testator would repeal (i.e. revoke) all his âearlier willsâ.
Law grants the owner âfull freedomâ 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 âfemale ownerâ. However, in case of a âMuslim personâ, there are certain ârestrictionsâ 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 âlaw of testamentary successionâ, i.e., he can make a âWillâ, and there-under he can lay down a âscheme of distributionâ 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.
When such owner dies âwithoutâ making a âWillâ, then his property is to be distributed among his relatives. His relations with them may be âby bloodâ or âby marriageâ. In other words, in such cases, a ânon-relativesâ 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 âheirsâ. Here, who are the âheirsâ of a person, and what âshareâ they will take in the property, are questions, which relate to the âPersonal Lawâ applicable to the deceased person. When a person dies âwithoutâ making a Will, or if, in case he had made a Will,(but) his âWillâ is found to be âinvalidâ, then his property devolves by the rules of âintestate successionâ. The law of âintestate successionâ is properly called as the âlaw of inheritanceâ. The law of âintestate successionâ is concerned with the question of determining, as to among the relations of the deceased, who are his âheirsâ, i.e., who are those relations, who are entitled to take his property, and what will be the âshareâ of each heir, i.e., in âwhat mannerâ and in âwhat proportionâ property is to be distributed among the heirs. If in case a âdeceased personâ had left ânoâ relations, then, under the personal laws of all communities, the âStateâ inherits such property under the principle of âescheatâ.
In India, every community has its own âpersonal lawâ; 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 âHinduâ, because the same personal law applies to him.
The âtestamentary powersâ of a Hindu is governed by the âHindu (Personal) Lawâ. The âIndian Succession Act, 1925â does not deal with âsubstantive lawâ, such as, what property may be transferred. This âAct of 1925â primarily deals with the âformalitiesâ, 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 âTestamentary Successionâ, i.e. law relating to Wills, of the Hindus, Christians, Parsis, Jews and others (other than Muslims) is almost uniformly contained in the âIndian Succession Act, 1925â, with some modifications as regards to Hindus. Here, for the purposes of Law, the word âHindusâ also includes âSikhs, Buddhists and Jainsâ besides the Hindus.
A âWillâ 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 âWill or testamentâ is a declaration, in a prescribed (i.e. legal) manner, of the âintentionâ 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 âsound mindâ, and who is ânot a minorâ, can execute his or her âWillâ. 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 âinstrument of Willâ has to be appended with the âmedical certificateâ of such âdoctorâ, who, after actual examination of such person (making a Will), certified that, such person is in âgood and sound state of mindâ, although he may not in âphysically sound conditionâ 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 ârevocableâ instrument (i.e. document). A Will is revocable, at any time during his âlifetimeâ, by the testator (i.e. person, who makes a will) before he dies. Whereas, the âtransaction of giftâ, 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 âdoneeâ (i.e. the person, to whom, gift is made).
It is ânotâ necessary, for any âtestamentary documentâ, to use any âspecial / technical wordsâ, or to have any âspecial formâ. However, the âwordingâ must be in such manner that, the âintentionâ of the testator can easily or clearly be known therefrom.
A âWillâ is the âdeclarationâ, by the âownerâ (of property), as to âhowâ his property is to be âdisposed ofâ 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 ârevokedâ anytime during the âlifetimeâ of such owner. Ordinarily, in the absence of Will, upon the death of any person (owner), his âall propertyâ naturally and automatically devolves, by effect and operation of Law, i.e. as per the âRules of Inheritanceâ, upon his own (all) âheirsâ. But, when such person does not wish that, his property should naturally devolve âmerelyâ upon his âheirsâ, or, if he does not wish that, his âeach and allâ property should devolve only upon his own âheirsâ, then in such cases, he may dispose of his all or âany partâ of his property, as per his own âwishesâ, 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 âparticular personâ of his own âchoiceâ, which may include any âstranger personâ, 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 âcharitable organizationâ provided him âfinancial supportâ for his âhigher educationâ. Thereafter, his then one âwealthy friendâ helped him for âestablishing his businessesâ. On such background, said man, with his tremendous efforts, later on, earned lot of income and properties (including immovable property). Now said man became âagedâ and often becomes ill. He has one âyoung married sonâ, who does not take any care of his own aged parents. Besides, said man also has one âmarried daughterâ, who is âvery poorâ, but who, along with her poor husband, takes lot of care of her aged parents. That, his said âwealthy friendâ is already âdiedâ, but whose son is now in financial crises. Now suppose, because of his feelings of âaffectionâ towards his âpoor daughterâ, said man wishes that, some âlarger shareâ of his property should go to her, than that of his son. Besides, because of his feelings of âgratitudeâ towards his pre-deceased âthen wealthy friendâ, he wishes that, some part of his property should go the said âson of his friendâ. Besides that, since said man believes that, said âcharitable organizationâ has been doing great work for the society, he wishes to âdonateâ some of his property to said organization. So here, âhowâ can he fulfill his all such âwishesâ? Here, one option is to make the âgifts or donationsâ during his âlifetimeâ itself. But, for making such gifts, especially of any âimmovable propertyâ, it requires âlot of expensesâ towards stamp-duty and registration charges. Besides that, if he makes such gifts, now at present moment, then he will be âdeprived ofâ from the âenjoymentâ of his property during his âremaining lifetimeâ. Further, if he gifts now a âlarger shareâ of his property to his âdaughterâ, then his said careless son will start âquarrelsâ with his own parents and sister. Hence here, this option of making âgiftsâ is not good or proper. Therefore he should make a âWillâ.
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 âfirstlyâ, upon all his âpreferential heirsâ, i.e. âClass-One heirsâ, which includes now âSixteen categories of relativesâ, who, if all surviving the deceased, shall have the right, to inherit, or to take such property in succession, âtogether and simultaneouslyâ. For instance, the âfourteenth categoryâ, of such âpreferential (class-one) heirsâ, is the âDaughterâ of a âpre-deceased daughterâ of a âpre-deceased daughterâ, and the âsixteenth categoryâ, of such heirs, is the âDaughterâ of a âpre-deceased daughterâ of a âpre-deceased sonâ, of the âdeceased personâ, whose property is now subject of âdevolution or inheritanceâ. And, in the âabsenceâ of such âClass-one heirsâ, i.e. when, behind such âdeceased personâ, ânotâ even any âsingle heirâ, out of those âsixteen categories of relativesâ, is surviving, then his property devolves âsecondlyâ, upon his those relatives, which are known as âClass-Two heirsâ, and which includes âNine groups of heirsâ consisting of many relatives. For instance, the âFatherâ of such âdeceased personâ is one of such âClass-two heirsâ. Therefore, now suppose, if such âdeceased Hindu maleâ is survived by only âtwo relativesâ, namely, his âfatherâ, and other one is his pre-deceased daughterâs pre-deceased daughterâs âdaughterâ, i.e. his âgreat-granddaughterâ, then in such situation, his âall propertyâ would devolve âonlyâ upon such âgreat-granddaughterâ thereby totally âexcludingâ the âfatherâ from inheritance. And, this is the problem of âintestate successionâ, i.e. where a person dies âwithoutâ making any âWillâ. Besides that, since there are so many heirs, in reality, often âdisputeâ arises, regarding the âpreference of shareâ and âquantum of shareâ, in the âdistribution of propertyâ of such deceased person in case of âinheritanceâ. Today, number of litigation (court-cases) is pending, for many years, between the brothers and their âmarried sistersâ, regarding succession or inheritance of property of their âdeceased fatherâ. Hence, all such problems, disputes or litigation, can simply be avoided, if a person makes a Will for disposition of his property.
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 âWillâ. 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 testatorâs estate to the beneficiary.
Estate : The property of the testator âremaining or leftâ after his death.
Witnesses : The persons, who are the âeye-witnessesâ of the âfactâ of âsinging of the Will by the testatorâ.
Executor : The person, who would administer the estate of the âtestatorâ, after his death, in accordance with the provisions / directions under the Will. He is appointed by the âtestatorâ himself under / by his Will. Executor has to act like a âtrusteeâ. Besides, even any such âlegateeâ, who undertakes to carry out the wishes of a testator, will be treated as a trustee.
Administrator : The person, to whom âLetters of Administrationâ is granted, by the âcompetent Courtâ, for administration of the estate of any such âtestatorâ, who had ânotâ appointed any person as an âexecutorâ under / by his Will. Such âadministerâ can also be appointed by the Court, in cases, where the testator had appointed one person as executor under the Will, but such person ârefusesâ to act so as executor, or he is âlegally incapableâ to act as so, or he dies, before the âdeath of testatorâ, or before the Will has been âprovedâ, or before he has been able to execute the Will âfullyâ. The âdistinctionâ between an executor and administrator is that, the âexecutorâ can be appointed by the âtestatorâ under his Will, whereas the âadministratorâ can be appointed only by the âcompetent Courtâ.
Probate : When the âcompetent Courtâ grants âletters of administrationâ, which is annexed with the Will, then it is said to be âgrant of probateâ. Probate means the âcopyâ of a Will, which is âcertifiedâ under the seal of a âcompetent Courtâ, with a âgrant of administrationâ to the estate of the testator. It is the âconclusive evidenceâ about the âdue execution and validityâ of the Will, and about the âtestamentary capacityâ of the testator.
Attestation of the Will is a âmandatory (i.e. compulsory) formalityâ of an âordinary (i.e. regular)Willâ, which is also called, in legal terms, as an âunprivileged Willâ. The âexecution of a Willâ includes its âattestation by witnessesâ, and so, if there is no attestation, the Will is not validly executed. It is absolutely necessary that, the âattesting witnessâ should sign the âinstrument (i.e. document) of Willâ.
A Will must be attested by at least âtwoâ witnesses. It is safe practice that, donât restrict to only âtwo witnessesâ, if more than two are available, for instance, if âfourâ persons are available, then make them such âattesting witnessesâ. Often, the âdisputes or litigationsâ get created, regarding the âdue executionâ and validity of a Will, after the âdeath of testatorâ. So, before giving any effect to such Will, it is necessary to âproveâ its âvalid executionâ before the Court. Since now, the âtestatorâ is âdeadâ, he cannot be called now, as a witness âbefore the Courtâ, to prove due execution of his Will. Hence, everything depends now upon the âattesting witnessesâ, through whom only such âdue execution of a Willâ can be âprovedâ.
While âselectingâ the persons as attesting witnesses, a âcredibility or reliabilityâ of them is very important factor. They must be such persons, who also think and insist that, the âwishesâ of the âdeceased testatorâ should get fulfilled. Besides that, the âage-factorâ of such âattesting witnessesâ is also important. Generally, such persons should comparatively be of the âyounger ageâ than that of the âtestatorâ, otherwise, it may happen that, such âwitnessâ dies before the testator. Such âwitnessesâ 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 âCA or advocatesâ, who have âdraftedâ any such Will for their âclientâ, should avoid themselves from becoming the âattesting witnessesâ of such Will, unless they act in capacity of âvery close friendâ of such testator; otherwise, they would be compelled to face the examination, particularly the cross-examination by the âadverse partyâ, 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 âCA or advocatesâ can become the âexecutorâ of such Will, if the testator also desires so, provided that, they must ânotâ take any âlegacy or benefitâ under such Will.
Each âwitnessâ must have seen the âtestator signâ the instrument (i.e. document) of a Will. Where the Will is âattestedâ by only âone witnessâ, or if it not attested by any witness, then it is âinvalidâ. If attestation of the Will is not proved, then even a âregistered Willâ is not admissible. Attesting witnesses need not know the âcontentsâ of the Will. The âattesting witnessesâ merely require to signify that, the testator affixed his signature in their presence. Therefore, the âproof of attestationâ does not mean that, the attesting witnesses knew the âcontentsâ of the Will. It is not necessary that, âallâ the witnesses should be present at âone and same timeâ. The testator may sign in the presence of âone witnessâ and acknowledge his signature before another. If the Will has already been signed, then the witness, who has not seen the âtestator signedâ, must have received, from the testator, a âpersonal acknowledgmentâ of his signature. However, if one of the attesting witnesses âprovesâ 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 âmagnificent documentâ, they should be free from all suspicion. Therefore the law says that, any bequest, which is given to any âattesting witnessâ, or to âhis / her spouseâ, shall be ânull and voidâ. 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 ânotâ applicable to the Wills made by a âHindu, Sikh, Buddhist or Jainâ. Nevertheless, it is always safe practice, to avoid giving of any bequests to the attesting witnesses.
Any such person, who is appointed as an âexecutorâ under a Will, is also competent to sign the Will as âattesting witnessâ. But in such cases, if any âlegacy or benefitâ 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 âattesting witnessâ to be different persons.
There is one important rule that, a legacy will âlapseâ, if the âlegateeâ does ânotâ survive the testator. Here, the expression âlapse of legacyâ means that, there is âfailure of legacyâ or âtermination of legacyâ, and so, it cannot given any effect to. Bequests, made under the Will, cannot take effect, until the âdeath of the testatorâ, and therefore, ânoâ one can claim anything, under a Will, till the testator dies. If, at the moment of âdeath of the testatorâ, 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 âdeath of legateeâ before the âdeath of testatorâ, such legacy would ânotâ lapse, if the testator clearly mentions, in his Will, that, in such situation, the legacy shall be given to âanother specified personâ. Thus, if there is a apparent and clear âintentionâ of the testator, which can be noticeable from the instrument of Will, by which, he has also provided a âsubstituteâ, for a legatee âdyingâ in his lifetime, then such âsubstitute legateeâ would take the bequest. This is called as the âbequest in alternativeâ.
Unless a âcontrary intentionâ appears in a Will, the property, which is subject-matter of the âlapsed legacyâ, will become part of the âresidue estateâ of the testator, and then, it will be included in the âresiduary bequestâ. But, where a Will does ânotâ contain such âresidue clauseâ, then said property shall go to the âheirsâ of the testator, as per the ârules of inheritanceâ, thereby treating that, the testator has âdied intestateâ (i.e. without making any Will) with regards to that property.
A âresiduary legateeâ is a person, to whom, the testator gives âwhat remainsâ out of his property, after he had made all those âspecific bequestsâ that he desired to make by his Will. Thus, wherever a testator lays down that, the âsurplus or residueâ of his estate, after the payment of his âdebts, specific legacies and cost of administrationâ, shall go to the person, specified by him in his Will, then such person is known as âresiduary legateeâ, and such bequest to him is called as the âresiduary bequestâ. Such âresiduary legateeâ is also entitled to get all that property, which is subject of the âlapsed legaciesâ, or which is subject of such legacies, which have âfailedâ to take effect, as being âinvalid or voidâ.
Generally, in practice, a person, who is the âresiduary legateeâ, is also appointed by the testator as an âexecutorâ 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 âas an executorâ 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 âimplied conditionâ 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 âprovesâ the Will, with an intention of acting as the executor, or takes some steps, which clearly indicate his intention to act as executor.
The execution of a âsubsequent Willâ is a âmode of revocationâ of âearlier Willâ. However, it is essential that, such âsubsequent Willâ must contain, through separate clause, a âstatementâ to the effect that, it is hereby ârevokingâ all former Wills, if any. There is one âlegal maximâ that â âno man can die with two inconsistent testaments (wills)â. Therefore, in other way, it can also be said that, if âlater Willâ does not revoke earlier Will, and when it is ânotâ inconsistent with âearlier Willâ, then any number of such Wills, whatever be their dates or form, can be admitted to probate, because âall togetherâ shall constitute the âlast Willâ of the testator. Here, it is to be noted that, any âinvalidâ subsequent Will cannot revoke earlier âvalid Willâ.
It is not necessary that, a Will must always be revoked by making âanother Willâ. Where the person, who previously made the Will, later on / now does ânotâ have any intention to dispose off his property by âtestamentary successionâ, then he can revoke his previous Will by one âwritten declarationâ, thereby expressing his intention to revoke his earlier Will(s). But here, in such case, such âwritten declarationâ, must also be properly executed by such person, and âattestedâ by at least âtwo attesting witnessesâ.
However, where the testator is personally having the custody of âoriginal instrumentâ of his Will, and if he wants to revoke his Will, then he himself can do so, thereby simply âburning, tearing or otherwise destroyingâ 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 âpresumedâ that, the testator himself destroyed it, because he intended to revoke the same.
Wills do not require registration. Even if, it is registered, ânoâ stamp (duty) is required. Even if, a Will bequeaths âimmovable propertyâ, its registration is not compulsory. Here, it is to be noted that, this factor shows the âadvantageâ of âdisposing ofâ property by way of the âWillâ, as compare to that of transfer by way of âGift-deeds of immovable propertyâ, 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 âtestatorâ himself registers his Will, then such âregistration of the Willâ raises a strong presumption of the âvalidity of the Willâ. A ânominal feeâ is payable for âregistrationâ; in Maharashtra, presently such fee is about Rupees âOne Hundredâ only.
However, a Will may be âdepositedâ with the âregistering authorityâ under the âIndian Registration Act, 1908â. A testator may âdepositâ with any Registrar his Will in a âsealed coverâ. Then, after satisfying himself about the âidentity of the testatorâ, and after making necessary entries in concerned register-book, the âRegistrarâ keeps or retains said âsealed coverâ, containing a Will, in his âfire-proof boxâ. However, if the âtestatorâ, later on, is having âdifferent intentionâ, then he can âwithdrawâ said âsealed coverâ from the Registrar; for that purpose, he has to make prescribed application to concerned Registrar. After the âdeathâ of such testator, upon application by any person, and after satisfying himself about the fact of âdeathâ of such testator, who deposited the Will, concerned âRegistrarâ opens said âsealed coverâ in presence of the applicant, and then, cause the contents thereof (i.e. instrument of Will) to be âcopiedâ into his book, and after such coping, the Registrar has to re-deposit the âoriginal willâ. Then any person can get the âcertified copyâ of said Will, from the Registrar, after making application and paying fees.
Under the Muslim Law, a Will (i.e. Wasiyyat) can be made, either âverballyâ or in âwritingâ. However, as it is a safe practice, where the subject-matter of the Will is âimmovable propertyâ, it is better to make it âin writingâ.
Basically, under the Muslim law, a bequest in favour of any âheirâ is ânot validâ. However, it can be made valid by the âconsentâ of âother heirsâ, 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 âone-thirdâ (1/3) of his ânet estateâ. Here, the ânet estateâ means that property, which âremainsâ after payment or satisfaction of testatorâs debts owing to third persons and the âfuneral expensesâ of deceased testator. In other words, up to such âone-thirdâ of net estate, any Muslim person is free to make a Will. This is a âmaximum limitâ of âdisposable propertyâ through the Will; and it is called as the âbequeathable thirdâ. However, if in case, âmoreâ 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 âconsentâ of âall the heirsâ of such person.
A Muslim woman can also make a Will.
While thinking about making of a Will, firstly, one must know or realize that, of what or which properties, he is an âabsolute ownerâ. Such properties may be immovable or movable. Immovable properties include his âland and buildingsâ. For the purpose of âdraftingâ his âinstrument of Willâ, such person must know the âexact descriptionsâ of his âimmovable propertyâ, 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 âlistâ of all such items or things, which he wish to dispose of through his Will. He may also entitled to some âintangible propertiesâ, for instance, he may have rights into any trademark, patent, copyright, etc. His property also includes the âdebtsâ, which âthird personâ owes to him. Besides, his property also includes his âinvestmentsâ 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.
Where any Will is made, by a âHindu, Sikh, Buddhist, Jain or Parsiâ, within the âlocal limitsâ of the âordinary original civil jurisdictionâ of the âBombay High Courtâ, or, if it is made âoutsideâ those limits, but, when it relates to the âimmovable propertyâ, which is âsituatedâ in those âlimitsâ, then, for âestablishing the rightâ, through the Court-proceedings, as an âexecutor of Willâ or as a âlegatee under the Willâ, firstly, one has to obtain the âProbate of Willâ or âLetters of Administration with the Willâ, from the âcompetent Courtâ. However, obtaining of such probate is ânotâ required in case of any Will made by a Muslim or âIndian Christianâ.
For obtaining such probate, an executor or any legatee, as the case may be, has to make an âapplicationâ to âcompetent Courtâ; and, while making such application, he is required to pay the âCourt-feesâ in following manner. â
Such court-fees are calculated on the basis of âaggregate market valuesâ of the properties, which are subject-matter of the Will.
Thus, in case of Maharashtra, when such âaggregate valueâ is up to âRupees Fifty Thousandâ, then court-fee is âtwo per centâ of it.
Then, for the âexcess valueâ over ârupees fifty thousandâ, up to âRupees Two Lakhsâ, such court-fee is âfour per centâ of such âexcess amountâ.
Then, for the âexcess valueâ over ârupees two lakhsâ, up to âRupees Three Lakhsâ, such court-fee is âsix per centâ of such âexcess amountâ.
Then, for the âexcess valueâ over ârupees three lakhsâ (up to whatever maximum of such amount), such court-fee is âseven and half per centâ of such âexcess amountâ, but subject to the maximum of âRupees Seventy-five Thousand onlyâ.
Nevertheless, if we compare the disposition of âimmovable propertyâ by way a Will with the Gift-deed, then still, âdisposition by Willâ is much âless expensiveâ. Consider one example here. Subject-matter of such disposition is the house-property worth âRupees Fifty Lakhsâ, which is situated within the limits of âmunicipal corporation of Puneâ. So, for transferring said property by way of âGift-deedâ, it attracts âstamp-dutyâ of âRupees Two Lakhs Fifty Thousandâ, besides the âRegistration-feeâ of approximately âRupees Thirty Thousandâ; whereas, for obtaining the âprobateâ for such Will, which had disposed of said property, it merely attracts approximately âRupees Seventy-five Thousand onlyâ as the âcourt-feesâ.
Here, it is to be noted that, this issue of âobtaining of probateâ would come into picture only after the âdeath of the testatorâ, and not at the moment of execution of a Will itself.
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