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Drafting of a Will
  • By: Adv. Aniket Nerurkar
  • Date: 21 May 2020
  • Wills
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A Will or a testament is a legal document by which a person, who is known as the testator, expresses his wishes as to how his property is required to be distributed after his death. The testator also appoints one or more person, who is known as the executor, to manage the estate until its final distribution. A Will acts as a legal document which is used for transferring the property and other possessions of the testator after his death. The definition of the Will is mentioned under section 2 (h) of the Indian Succession Act 1925 which reads as follows: Will as a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A testator should be at least 18 years of age and above. He must be of sound mind and must have testamentary capacity. In case if the Will is not written/typed in the testator’s handwriting, then he must sign the Will. Also, the Will is required to be attested by two witnesses who are not beneficiaries in such Will and who were present at the time when the testator has signed his Will. One of the vital things to be kept in mind for a valid will is the intention of the testator. Hence, all the wills that are executed are required to meet specific standards in order to be considered valid in the Court.

Essential elements of a Will

  1. Executor

    An executor is a person appointed by the testator but is not same as the administrator who is appointed by the Court. Where the Will talks about the powers to collect the outstanding, pay debts and manage the properties, the person can be said to be appointed as an executor by implication.

  1. Probate

    Probate acts as the evidence of the appointment of the executor and unless and until revoked, is conclusive as to the power of the executor. However, the grant of the probate to the executor does not confer upon him any title to the property.

  1. Letter of Administration

    Letter of Administration is a certificate granted by the competent Court to an administrator. This letter is only given where there exists a will authorizing him to administer the estate of the deceased in accordance with the Will. If the Will does not mention the name of the executor, then an application can be filed in the Court, for grant of letter of administration for the property.

  1. Attestation of Will

    The word ‘attesting’ means, signing a document to testify the signature of the executants. Therefore, an attesting witness signing before the executant who has put his mark on the Will, cannot be said to be a valid attestation. It necessary, that both the witnesses, must sign in the presence of the testator, but it is not essential, that even the testator needs to sign the Will in the presence of the witnesses. Further, it is not required that both the witnesses have to sign at the same time. It is also not necessary that the attesting witnesses should know the complete content of the Will.

Inclusions of the Will

To draft a Will, there are certain pre-requisite which needs to be adhered by the testator and the executor. For the drafting of a Will, the following points should be included:

  1. Details of the testator: All the details of the person who is making the Will should be included in the declaration. The name, age, address and all the other details which shall help in identifying who is making the Will and when it is being drawn.
  2. Declaration: It is mandatory for the testator to declare, that he/she is of sound mind and is under no coercion or influence while making of the Will.
  3. Details of the beneficiary: The details of the beneficiaries should be mentioned in the Will. Name, age, address of the one who will be benefiting out of the Will is essential while drafting a will.
  4. The executor of the Will: It is advisable to appoint an executor as he can ensure that the Will is carrying out in the way the testator wants or demands. The name, age, and address of the testator is mentioned as well.
  5. Details of property and assets: It is required that the testator lists out all the details of the asset and properties that a testator has, and also the ones that shall be included in the Will. He/she can also list out any specific assets that are there.
  6. Division of share: The share that each beneficiary will be allotted should be mentioned in the Will. It the asset is allotted to the minor, then the custodian for a minor should also be listed in the Will.
  7. Specific Directions: The testator is required to give directions in terms of executing the Will, and should specify if there are any other instructions.
  8. Witness: There should be a signature by the testator in the presence of at least two witnesses. The witnesses do not need to know the details of the will they just have to verify that the signature by the testator was done before them.
  9. Signature: After the last statement is mentioned on the Will, the testator should sign with the date.
  10. Doctors Certificate: A Doctors Certificate (MBBS or MD) stating the person executing the WILL i.e, the testator is in a sound mind and health to execute his WILL.

Drafting of a Will

When a will is being drafted, it can go through various alterations, which are:

Revocability of a Will

According to Section 62 of the Indian Succession Act, a will is revocable or altered anytime, during the lifetime of the testator. Section 70 of the Indian Succession Act, further lays down how it can be revoked.

A mere and simple intention to revoke a will is not sufficient for a valid revocation. When a will has to be revoked, it should be given in writing and an expressed form. The revocation clause mentioned in the Will would revoke all the prior wills and codicils. When there is no express clause to the effect, then the former will becomes invalid to the extent of its inconsistency with the latest Will, known as an implied revocation. If there is no inconsistency between the two wills, then they cannot be considered as two separate wills. However, it is important that these, two wills are read together to indicate the testamentary intention of the testator.

The other way by which revocation can take place is when the revocation is made in writing, through declaring an intention to revoke and the writing must be signed by the testator with the two witnesses. The deed of the revocation is executed in the same way, how a will is executed.

To revoke a will, the testator may burn the Will, or by some other person in his presence and by his direction to revoke the same. The burning of the Will should be actual and not symbolic.

Therefore, a will may be revoked expressly by another will or codicil, by implied revocation, by some writing or by burning or tearing otherwise. It is important to know that cancellation of a will by drawing across lines is not a mode of revocation of a will. Under the Hindu Law, the Will is not revoked by marriage or by subsequent birth.

Alterations in Will

Section 71 of the Indian Succession Act applies to alterations only if they are made after the execution of the Will and not before it. Section 71 of the act provides that any interlineations or any obliteration or any other alteration made in the Will after its execution is null unless the alteration is accompanied by the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the attesting witnesses at the end of the Will or some other part referring to the alterations. When these alterations are executed, then they are read as the Will itself. However, if these requirements are not completed, then the alterations would be invalid and the probate will be issued not considering the alterations. The alteration has to be made in the Will itself and not in a separate paper. However, if the changes are such that which cannot be decoded or deciphered, then the Will would be considered destroyed to that extent.

Wordings of the Will

Section 74 of the Indian Succession Act allows the making of the Will in any form and in any language. There is no requirement for adding technical words in making of a will, but if technical words are used in the Will, they are assumed that they are used in their legal sense unless the context states otherwise. As long as the aim of the Will is clear, the technical words or accuracy in grammar is immaterial.

The construction that postpones the vesting of the legacy, in the property disposed of should be avoided. The intention of the Will should be decided after constructing the whole Will and not according to the individual clauses.

Execution of the Will

On the death of the testator, the executor of the Will or a legal heir of the testator can apply for probate in the Court. The Court will then ask other heirs if they any objections to the Will. If there are no objections in the Will, the Court then grants probate. A probate is a copy of Will, which is certified by the Court. It should be treated as conclusive evidence of the genuineness of the Will. It is only after this that a will comes into effect.

Signature of the Testator

As per the instructions of section 63(a) of the Indian Succession Act, the testator is required to sign or affix his mark. If the testator is not able to produce a sign, in that case, a thumb impression has been held legally valid.

Legal Pronouncements

In the case Gnanambal Ammal v. T. Raju Aiyar, the Supreme Court held that the cardinal maxim to be observed by the Court in construing a Will is the intention of the testator. This intention is primarily to be gathered from the language of the document, which is to be read as a whole. The other principal applies is that, when two types of constructions are possible for the making of the Will, then the one who avoids intestacy and follows testacy should be followed.

The Court is required to follow the principle of clear intention. The primary duty of the Court is to determine the intention of the testator from the will itself by reading of the Will. The Supreme Court in Bhura Vs. Kashi Ram held that a construction which would advance the intention of the testator has been favoured and as far as possible effect is to be given to the testator’s intention unless it is contrary to law. The Court should put itself in the shoes of the testator.

In another case of Navneet Lal v. Gokul & Ors, the Supreme Court stated that the Court should consider the testator’s relationships, the position of the testator’s families, the surrounding circumstances, and the probability, he would use words in a particular sense. However, it also held that these factors are merely an aid in ascertaining the intention of the testator. The Court cannot speculate what the testator might have intended to write. The Court can only interpret in accordance with the express or implied intention of the testator expressed in the Will. It cannot recreate or make a Will for the testator.

Conclusion

Drafting of a will is important as well as necessary in today’s time. It is no longer considered a taboo in India, and people are coming forward and drafting their wills so that in future, their assets and property can be easily divided into the beneficiaries. As these documents carry immense significance and importance, one should make sure, and these are drafted according to the laws enacted and with the help of a legal person so that no errors or mistakes are committed.

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Intestate Succession

By: admin Wills 07 Apr 2020

As the name suggests, a will is a declaration that expresses the desires or wants of a person with relation to his property and estate and also provides for its transfer upon his/her death. In ordinary language, succession means inheritance. When a person dies, inheritance or succession follows.

 

Hindu Succession Act

The Hindu Succession Act is the act which states the rules and procedures relating to inheritance applicable to Hindus, Sikhs, Jains, and Buddhists etc. Majority of India follows the Hindu Succession Act, whereas for Muslims Sharia law is prevalent in India. The Indian Succession Act which covers Christians as well as those people who are not covered under the Hindu Succession Act and Sharia Law.

Succession is a very complex process in a diverse and dynamic country like India. There are two types of Succession:

  1. Testamentary successionIt is a type of succession in which the deceased had executed a will, and the property is divided as per the execution of the will.
  2. Intestate succession: In India, as per the provisions of Indian Succession Act, 1925 if one dies without writing a valid will, he is said to be died intestate and his property will be distributed as per the provisions of the succession law applicable to him.

 

Intestate Succession

A person is said to die intestate when he/she dies without making a will that means without disposing off his/her property to the heirs.  Sometimes, disposition under the will is also not possible on account of the illegal bequest or invalid bequest.  Intestacy can either be total or partial.

Under the circumstances, when a person dies intestate, the deceased’s assets are distributed among the heirs as per the provisions of the Indian Succession Act. The distribution or vesting of the assets takes place according to the relevant personal laws. There are situations, when there is more than one heir, thus giving rise to complexities and difficulties.

 

Intestate Succession among Hindus                                                                                                                    

The laws relating to intestate succession among Hindus was amended and consolidated by the Hindu Succession Act passed in the year 1956. The law is applied to all the persons who practise religions like Hinduism, Jainism, Sikhism, and Buddhism. In the year, 2005, the act was further amended. The act contains provisions related to the situation where an individual dies without making a will.

 

Below mentioned are the claims that can be made when a male dies without making a will.

1st Claimant: They are known as the Class I legal heir, which includes the mother, wife and children of the deceased. All of them have equal rights over the assets. In case, any child of the deceased is no more than the property is given to the child and wife of the deceased child.

2nd Claimant: When there is no one available from class I legal heirs, then the class II legal heir comes into the picture. They are father, sibling, living children’s grandchildren, sibling’s children of the deceased.

3rd Claimant: When class I legal heirs and class II legal heirs are absent then the property can be claimed by the Agnates. They are defined as the distant blood relatives of father’s side, also known as Male Lineage.

4th Claimant: When all the three levels of the class heir are absent, then the property is given to the Cognates. Cognates are the ones who are blood relatives of the mother’s side, also known as Female Lineage.

 

Below mentioned are the claims that can be made when a female dies without making a will.

1st Claimants: The first claimants of the deceased female are the children and the husband. They can divide the property among them equally.

2nd Claimants: When the class I heirs are not available; the claim is made by the heirs of the husband.

3rd Claimants: In the absence of 1st and 2nd claimants, the mother and father of the deceased can make a claim.

4th Claimants: There are chances when 3rd claimants are not there to claim property, and therefore the heir of the father gets the property.

5th Claimants: At the last, to opt for the property of the deceased, the claim is given to the heir of the mother.

There are circumstances when an intestate dies, and no claimants are available. In such a situation, the property is devolved to the State Government by following the procedure of the law.

 

Where there’s Covid, there’s Will

Due to the recent outbreak of Covid-19 across the country and the lockdown imposed by the Central Government, it is noticed that the number of request for drafting wills had increased tremendously. The older people and rich people have started thinking to execute their wills in the amid fear of Coronavirus. People have started considering that dying after executing a will is far better than dying intestate, for the sake of the family as well as the society.

 

Conclusion

In ancient times, executing a will was considered a taboo in India. However, as the time has passed, people have realised the importance and need of executing a will as it not only saves a lot of time while dividing the property but also helps to divide the property without any conflicts between the family, it is recommended that when a person wants to execute his/her will, they should always consult a legal person whom they trust. Legal advice in such a matter is essential. Writing a will, once considered a somewhat morbid exercise, is now a must-do for India’s rich as well as the middle class.

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Probate

By: admin Wills 12 Feb 2020

The Indian Succession Act, 1925 states that probate is the official proof of a will. It is issued to the person or executor who is authorized to execute or implement the Will and add a legal validity to it. Probate, as defined in the India Succession Act, 1925, is a copy of Will, certified under the seal of the jurisdiction of the competent court with a grant of administration of testator estate. If there are no executors of the Will, then a simple letter of administration is issued by the court, and no probate is declared. When the person applies for probate, the Will is proved, and the court keeps the original copy provided to the executor with a certificate that proves the genuity of probate and copy of Will.

Importance of a Probate

Probate is a document filed in court in order to prevent the administrators of a deceased person's estate or executors from getting permission to manage the estate assets. A probate caveat is filed to challenge a Will. For example, when someone believes that the Will was forged or was not written and approved by the deceased person, the application for probate can be filed.

Although, there are many reasons to specify why probate has become necessary. For, eg, a property within a society is bequeathed to an individual, and the person wants to occupy the same. Moreover, as per the guidelines of society register, the owner has died and left the Will, unless the executor shows probate stating his/her authority regarding transferring the property, the society might not agree to transfer the property. Probate is issued for a will attached by any Indian Hindu persons namely Buddhists, Parsis, Jains or Sikhs.

The executor has no right to establish the application of probate in any other court of justice unless a jurisdiction of the competent court has granted probate of the Will under which the right is claimed. Probate is compulsorily required, only if Will is made in any one of the two cases above:

(i) When there are problems at the time of existence of Will

(ii) When the beneficiaries have predeceased the testator and such other cases.

Letter of administration is entirely different from probate. A letter of administration is allotted when the Will has no name of the executor, or deceased person does not make the Will.

Application for Probate

It is issued concerning Section 57 and Section 213 of the Indian Succession Act, 1925. The probate is granted to the executor with a copy of will attached in succession by the High Court.

The person can apply after seven days of the death of the Testator, i.e. the person who is the owner of the property distributed it and made the Will. The application for probate can be made with the help of an advocate or a lawyer, under whose jurisdiction the property is present.

In these circumstances, Legato will help you to find the best and verified lawyers as per your requirement and necessities.

Documents Required for Probate

a. The Will should be genuine and the last Will made by the testator.

b. The proof of death of the testator.

c. That the Will is executed in the clear conscience of the testator.

Grant of Probate

Once the application is presented before the court, it will be verified by the respective authorities, and the nearest kin of the deceased will be intimated about the probate. The public is allowed to raise any objections by publishing a notice in the newspaper. If no objections are received from the general public, the probate is issued. It is compulsory for the applicant to pay the court fees at the time of application for probate. The court fees are based upon the value of the immovable assets.

Though probate cost you the court fees, lawyer fees and takes time to obtain, it is essential, if there are various assets to handle, and those immovable properties exist in various parts.

Grounds on which Will can be challenged:

Lack of execution: A valid Will has to be in written form and signed in the presence of two witnesses by the testator. Will can be challenged in the court if the process is not followed.

Lack of intention of the testator: The applicant has to prove that there is no intention of the testator to make a Will. Moreover, this plea is rarely used, as it is difficult to prove.

Lack of capacity of testamentary: The law says that adults are presumed to have the testamentary capacity as people above the age of 18 can make a Will. Therefore, the Will can be challenged based on dementia, senility, insanity, or that the testator was under the influence, or in some other way lacked the mental capacity to make a Will.

Lack of knowledge: Challenger of Will can present a ground that the testator was not aware of the facts while signing it.

Undue influence: Challenger of Will can challenge the same by showing that it was procured by forgery, fraud, or undue influence.

Forgery or Fraud: The burden of proof lays on the challenger of Will to prove that the Will is forged (made as a result of the fraudulent act) or was not signed by the testator.

Family claims: A family member can challenge a will because they are not provided sufficiently in the Will.

Revocation of Will: A registered Will can be challenged in the court. The fact that a Will has been registered will not, by itself, be sufficient to dispel all suspicions regarding it.

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WILL

By: admin Wills 16 Apr 2019

A will or testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution. For the devolution of property not disposed of by will, we can see inheritance and intestacy.
 
All wills are required to meet certain standards in order to be considered valid in a court of law. Writing your own will is a relatively straightforward process if your assets and bequests are also straightforward. In these circumstances, as long as you comply with the laws of your state, your will is likely to stand up in a court of law and be executed according to your wishes. Write the introduction to the will. Start by clearly labelling the document “Last Will and Testament.” Next, state your full name and address, and testify that you are over the age of 18, are of sound mind and are not making the will under pressure. Assess and divide your property. List your assets, including real estate, bank accounts, retirement accounts, stocks, bonds, and tangible assets, then assign your heirs a percentage of your total assets. Sign the will. If you have created a will through an online program, you have the document sent to you before signing it then you should sign it. Some states require that your signature be notarized, meaning signed in the presence of a public notary and stamped with the notary’s seal. Ask witnesses to sign the will
 
We will be discussing some will ahead:-
 
Simple Wills: Simple will are most often used and all that is needed is direction on how to distribute simple assets from the estate to the beneficiaries. A simple will must be in writing and should be typed instead of handwritten. The general elements of a will are the testator’s name, address and marital status; and instructions as to which property goes to which beneficiaries. The executor for the estate should also be named. The executor should also mention the guardian for any minor children. The testator and the witnesses need to sign and date the will.
 
Testamentary Trust WillsA testamentary trust will is different because it includes provisions that place a portion of your estate into a trust. Based on the terms of the testamentary trust, your assets are distributed to your beneficiaries, through the trustee who controls those assets. The format of a testamentary trust will is often quite similar to that of a simple will.
 
Joint WillsJoint wills are often used by spouses who intend to leave their property to one another. The surviving testator will inherit everything on the deceased spouse’s estate. Then, when the surviving testator passes away, the remaining estate will be distributed to the couple’s chosen beneficiaries, pursuant to the terms of the will. One thing to remember is that a joint will cannot be revoked once the first testator dies.  The format of a joint will is also similar to a simple will.
 
Living WillsThe purpose of a living will is entirely different from that of the three other types discussed here. The purpose of a living will is to provide detailed instructions about the type of medical treatment or life-saving measures you want to be used if you become unable to communicate those wishes for yourself. For instance, your living will specify that in the event you become terminally ill and unconscious, you do not wish to be put on a feeding tube or a ventilator, even if you would die without those measures.
 
Deciding which property to include in your willThe first step in deciding which specific property should be left to whom, you need to make a list of everything on your own. The next step is to eliminate all property or assets that are not required to go through probate in order to be passed on to your heirs.
 
Types Of Property And Assets To Include In A Will:
 
Real property, such as real estate, land, and buildings
Cash, including money in checking accounts, savings accounts, and money market accounts, etc.
Intangible personal property, such as stocks, bonds, and other forms of business ownership, as well as intellectual property, royalties, patents, and copyrights, etc.
• The unproductive property, such as valuable objects like cars, artwork, jewellery, and furniture, etc.
 
An Executor or Personal Representative needs to be identifiedA necessary component of every will is the identification of a trusted individual to make sure the terms of your will are followed. The executor is responsible for guiding your estate through the probate process and ensuring that your property is distributed to your beneficiaries, according to the will. An executor can either be a professional or a family member or a friend.
 
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