People have fair knowledge of will, which is defined in
Section 2(h) of Indian Succession Act 1925 as “The legal declaration of
intention of the testator, with respect to his property, which he desires to be
carried into effect after his death”. Testator means the owner of the property
who makes the Will. The intentions of testator as to how his properties are to
be succeeded are detailed in Will. The devolvement of properties as directed in
the Will takes place after the death of testator, otherwise called as author of
Will. The Testator may also appoint some person to carry out the directions and
his requests in the Will. Such a person is called executor. If the testator
does not appoint any executor the competent authority, the court may appoint a
person to administer the estate of the testator, who is called a administrator.
The persons who are entitled to the benefits under the will are called
Legatees. “Bequest under Will is not transfer of Property”
Will is always revocable; it can be revoked following manner:
Revocation by another Will or Codicil. Revocation by declaration in writing.
Revocation by cancellation. Revocation by destruction; Will can be revoked ‘by
burning, tearing or otherwise destroying. Under Mohammedan law: no writing is required to make a Will
Valid and no particular form; even of verbal declaration, is necessary as long
as intention of the testator is sufficiently ascertained, and though if it is
writing it does not require to be signed nor even signature and attestation,
But under Mohammedan law a Mohammedan cannot dispose of more than one third of
share of his property over which he has power of disposition by will. Bequest
in excess of the legally One Third share cannot take effect, unless the heirs
do not consent. The remaining Two third portions shall go to his heirs in share
prescribed by law.
Probate is
defined in Indian Succession Act, as “a copy of Will certified under the seal
of a court of competent Jurisdiction with grant of administration to the estate
of testator”. This is the official proof of the Will. Application for probate
has to be filed under section222, and 276 of Indian Succession Act in the
probate division of High Court. The Petition for grant of probate shall also be
verified by at least one of the witnesses to the will if procurable. However
this condition is recommendatory and not mandatory. Probate will be issued only
to the executor appointed in the Will. If there is no provision for appointment
of executor in the Will, the court will grant only letter of administration.
The Will is considered to be a genuine one after the probate is granted by
probate division of High Court. It binds not only the persons, who are the
parties, but also others, who are not parties to the probate proceedings.
Section 233 of Indian Succession Act 1925 states that
Probate will not be granted to minors, persons of unsound mind, to any
association of Individuals unless it is a company, which satisfies the rules,
conditions prescribed and published in official gazette by the State
Government.
If a codicil is discovered after the grant of probate a
separate probate exclusively of such codicil will be granted to the executor
provided the discovered codicil does not appoint another executor. Codicil is
an addition to the Will; a supplement to the Will. It can be made any time
after the Will is made, during the life time of testator. A codicil contains anything,
which the testator wants to add, any explanation, cancellation and even
cancellation of the Will. Codicil is a document that amends rather than
replaces a previous executed will, and Codicil is part of main Will and needs
to be executed with the same formalities as that of a will and must be proved
with the Will. If the testator appoints a different executor in codicil, which
is discovered subsequent to grant of probate, the probate of the Will stands
cancelled. A new probate of both Will and codicil has to be granted together.
If the Will is lost or misplaced by accident and if a copy
of the Will is available the probate may be granted until original Will is
produced. If the Will exists and the possessor refuses to give the to give the
will or the possessor is abroad, the court may grant probate on the copy of the
draft Will until the original or authenticated will is produced.
There is much confusion whether all wills execute by Hindus,
Muslims, Christians, Buddhists, Sikhs, Jains require probate. Section 57 and
read with section 213 of Indian Succession Act clears this confusion.
Obtaining of probate and letters of administration are
mandatory to establish the right as executor or legatee as per those sections.
But the application of the sections is restricted. Act specifically exempts
Mohammedans and Indian Christians. Indian Christians means a native of India,
who is or in good faith claims to be of unmixed Asiatic descent and who
professes any form of Christian religion. In case of Hindus, Buddhists, Jains,
Sikhs the provision is applicable only to the Wills made after 01.09.1870
within the territories which on the said date were subject to the Lieutenant
Governor of Bengal or within the local limits of ordinary original civil jurisdiction
of High Courts of Madras or Bombay and even to the Wills made outside those
territories, if the immovable properties referred in Will falls within the
territories mentioned above. Provision is not applicable to Wills made by Hindus,
Buddhists, Sikhs, Jains outside these territories or if the immovable
properties referred in will are situated outside these territories. Probate of
will is must in Madars, Bombay and Calcutta. In moffusal areas it is optional.
Obtaining of probate is also applicable to Parsis, if a
person executes Will and he dies after the commencement of the Indian Succession
Act, within the local limits of ordinary original civil Jurisdiction of High
Courts, of Calcutta, Madras, and Bombay or if the immovable properties referred
in Will is situated in those territories.
As stated earlier, the probate will be granted only to the
executor appointed in the Will. Such appointment may be expressed or by
necessary implication. Suppose In the Will if it narrates that ‘A’ shall be the
executor, and ‘B’ do not have any interest, then in such circumstance ‘A’ shall
be the executor and ‘B’ does not have any interest. If several executors are
appointed, the court may grant probate to all of the simultaneously or if it is
not possible to grant probate simultaneously it may be granted at different
times. In case where probate is granted to several executors and if anyone of
the dies, the full representation of testator rests on the surviving executors.
If the executor appointed renounces or does not accept to be executor, within
the time limited for acceptance, the Will may be probated and letters of
administration with a copy of the will annexed may be granted to person, who
would be entitled to administration.
(a)
Does not appoint an executor
(b)
Or the appointed executor is legally incapable
to act or executor died before the Will is probated.
(c)
Or has died after having probated the Will but
before carrying out the directions of the testator.
The
court may admit an universal or residuary legatee to probate the Will and
letters of administration
may be granted to him.
If
the author of the Will bequeaths all his properties to a single person, such a
person is called universal legatee. After paying all debts, charges and
devolvement to legatees, as per the Will anything that remains is called
residue. The testator may bestow such residue to a particular person who is
called residuary legatee. In certain cases the residuary legatee may die before
the properties of the testator are devolved as per will. The representative of
the residuary legatee has the same right to administration as that of a
residuary legatee.
Re
ocation of Probate: The grant of probate may be revoked on following grounds. A)
The proceedings to obtain the grant were defective in substance. B) The grant
was obtained by fraud, by making false suggestions. C) The grant was obtained
by means of untrue allegation of a fact essential in point of law to justify
the grant, though such allegation was made in ignorance or inadvertently.
D)
The grant has become useless and inoperative through circumstances. E) The
person to whom the grant was made has willfully and without reasonable cause
omitted to exhibit an inventory or account in accordance with prescribed law or
exhibited inventory of account which is untrue in material respects. District
Judges also have Jurisdiction to grant and revoke probates in all cases within
his district.
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