Will

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Will

 

Q: What is a will ?

 

Ans: A testamentary document by which a person bequeaths his property to be effective on his death is a will. The property will devolve on the person in whose favour it is bequeathed after death of testator.

 

Q: Who can execute a will?

 

  1. Any person above the age of 18 years and mentally sound may execute will, but will caused by fraud or coercion or by importunately will not be valid. Therefore a will must be executed voluntarily.
  2. Parents or guardians cannot execute will on behalf of minors or lunatics.
  3. Attestation by minimum two witnesses is necessary.
  4. Scribe (deed writer / advocate) cannot be called witness. Two independent attesting witnesses other than the scribe or necessary.
  5. Beneficiary under a will should not sign as attesting witness. In order to avoid disputes in implementation of a will, description of property and the beneficiaries should be clearly be written without giving room for any doubt.

 

Q: Is it compulsory to register a will?

 

Ans: It is not compulsory to register. Executants may register at his option. It is better to register the will. If original will is lost, a certified copy can be obtained from Sub-Registrar Office.

 

Q: Where can the will be registered?

 

Ans: It can be registered in any office of the Sub Registrar in India

 

Q: Is there any time limit to register a will?

 

Ans: There is no such time limit

 

Q: How a will is registered?

 

Ans: WILL is a legal declaration of the intention of a person with respect to his property or a state, which he desires to take effect after his death. WILL is an untitled document which state after the death of a person making the deposition and it is document which can be revoked, modify or substituted by the person executing the will at any point of his time during his life time. For executing the Will the person must be fully competent, as much as he should not be a minor and should not person of unsound mind. The Will has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing state of mind. It has to be signed by the executor of the Will and has to be attested by two witnesses atleast. However under the provisions of law the Will is not requiring in writing no required to be signed or attesting. The WILL under law is not required to be compulsory registered. It can be executed even on a plain paper and it can be fully valued even if unregistered. In the event of the person desiring WILL to be registered, he has to approach the office of the Sub-registrar and has to be accompanied by the person who have signed as witnesses on the said WILL .The executor of WILL as well as the attesting witnesses have to put their signatures and thumb impressions in the register maintained by the Sub-registrar. There are Sub-registrars defined for various district and you have to inquire for in this regard from the concerned office as to which Sub-registrar you are required to get your WILL registered. The Sub-registrar would be as per the place of the residence of the person executing the WILL.

 

Q: Can a will be cancelled?

 

Ans: The testator can cancel his will at anytime during his lifetime. Such cancellation deed requires a Stamp duty of Rs.100-00

 

Q: Can a registered will be rectified or changed?

 

Ans: If executant of a will wishes to rectify, add to will may do so during his lifetime. This is called codicil. This document does not require stamp duty.

 

Q: Can a will be registered even after death of testator?

 

Ans: Yes, claiming party under the will have to produce will, records relating to the death of the testator, witness and the scribe before the Sub Registrar. If Sub Registrar is satisfied about the truth and genuineness of the execution of the will, he will register.

 

Q: What is the Stamp duty and Registration fee to register a will?

 

Ans: There is no Stamp duty on will deed. For registration of will during the life time of the testator Rs.200-00 Registration fee prescribed. To register the will after the death of the testator Registration fee of Rs.200-00 and enquiry fee of Rs.250-00 is prescribed.

 

Q: Is the certified copy of a registered will available to any body?

 

Ans: A certified copy of a registered will is available to the testator only during his lifetime. After his death anybody can obtain after producing proof of death of testator.

 

Q: How to keep contents of a will confidential ?

 

Ans: Will can be deposited in a sealed cover in office of the District Registrar. A fee of Rs.1000-00 prescribed to deposit will in a sealed cover. Depositor or authorized person (executor) can withdraw the sealed cover containing a will, if desires to do so. A Registration of Rs.200-00 prescribed.

 

Q: What is the procedure to obtain the sealed cover containing a will after the death of the depositor?

 

Ans: On making an application along with proof of the death of the depositor, District Registrar will open sealed cover in the presence of the applicant and it will be registered. Certified copy will be issued if desired. A fee of Rs.100-00 prescribed to open a sealed cover.

 

Q: What is the procedure for change of khata of the properties obtained through will?

 

Ans: After the death of the testator person claiming through the will have to apply to the concerned authorities as explained in question no.2 along with the copy of the will and death proof.

 

 

Probation of Will

 

Q: What is meant by Probate of a Will?

 

Ans: According to Section 2 of the Indian Succession Act, 1925, Probate means "the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator". It is nothing but a decree passed by a competent court declaring the legality/correctness and genuineness of the Will of the deceased

 

Q: Is it necessary to Probate a Will?

 

Ans: Under Section 219 of the Indian Succession Act, 1925, if the deceased has died intestate and was not a person belonging to any of the classes referred to in Section 218 (i.e, Hindu, Mohammedan, Buddhist, Sikh or Jaina or an exempted person), those who are connected with him either by marriage or by consanguinity are entitled to obtain Letters of Administration of his estate and effects in the order and according to the rules framed in this section.

 

Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims, etc. are not bound to apply for letters of administration (Probate). It is optional and not mandatory for these persons to seek probate of the Will.

 

Q: What are the advantages of a Probated Will?

 

Ans: Probate of a Will when granted, establishes the genuineness of Will from the death of the testator and renders valid all intermediate acts of the Executor as such.

 

Q: What will be the legal consequences if the Will is not Probated?

 

Ans: If the Will which is required to be probated, under the Act, if not probated, has no legal sanctity and binding force.

 

Q: What is the time frame within which a Will is to be Probated?

 

Ans: There is no limitation for grant of letters of administration or probate. Where the estate is in the possession of administrator there is no question of the Probate Court delivering the possession to him but the probate will be decisive only with regard to the genuineness of the Will propounded and the right of the executor to represent the estate.

 

Q: Which is the appropriate Court to file the suit for the Probation of a Will?

 

Ans: Principal Court of Original Jurisdiction as per the local City Civil Court Act. The High Court also enjoys concurrent jurisdiction to grant probate of the Will.

 

Q: Who can apply for the Probate of a Will?

 

Ans: According to Section 222 of the Indian Succession Act, 1926, Probate shall be granted only to an Executor appointed by the Will. The appointment may be expressed or by necessary implication. In the absence of the Executor being named in the Will, the Legatees or the Beneficiaries under the Will could also seek probate of the Will.

 

Q: What are the documents to be submitted for obtaining the Probate?

 

  1. Original Will of the deceased.
  2. Title Deeds pertaining to the immovable property mentioned in the Will, if any.
  3. Documents pertaining to the movables, mentioned in the Will, if any.

 

Q: What is the procedure for obtaining a probate?

 

Ans: A petition has to be filed before the Principal Court of Original Jurisdiction or before the Hon'ble High Court under Section 374 of the Indian Succession Act. The Court in question will issue the court notices at the initial stage and a paper publication will be caused besides a Gazette publication as well. In case such a petition is contested, it will be converted into a regular suit and upon contest the same will be disposed off, by delivering the judgment and decree, in accordance with law.

 

Q: Can a matter relating to obtaining probate of a Will executed by person be referred to Arbitrator?

 

Ans. No, Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased. The Probate granted by a court is a judgment in "rem" and is conclusion and binding not only on the parties but also on the entire world. As such the parties cannot by mutual consent refer a probate regarding Will to Arbitration.