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-Presentation by

Shaishavi Kadakia

Advocate & Solicitor

26.2.2014

• Synopsis

• Why should I make a Will?

• What are the pre-requisites for making a Will?

• How do I write a Will?

• What are the different clauses in/ parts of a Will?

• How do I revoke a Will?

• How do I make changes to a Will?

• Once executed, where should I keep my Will?

• How do I register my Will?

• Tell me more about probate of my Will…

• Why should I make a Will?

“jatasya hi dhruvo mrtyur”

“For one who has taken his birth, death is certain...”

• Choice of heirs

• To avoid disputes or unpleasantness in the family

• Practicality for the family while dealing with institutions such as banks and societies

• Enumeration of assets for reference of heirs

• Appointment of professional executor for estate

• Creation of a succession plan for a family business

• What are the pre-requisites for making a valid Will?

• Testamentary capacity of the author of the Will (“testator”)

• should be of sound mind [Section 59 of Indian Succession Act, 1925 (“ISA”)]

• should not be a minor [Section 59 of ISA]

• must not be subject to any fraud or coercion or any such request or demand which takes away his free agency [Section 61 of ISA]

• Formal validity of the Will

• the Will must be in writing [Section 63 of ISA]

• must be signed by the testator and such signature must be placed in such manner that it appears that it was intended to give effect to the document as a Will

• must be attested by at least 2 witnesses

• How do I write a Will?

• A Will can be drawn up either by the testator himself or by engaging a lawyer

• Technical words or terms of art need not be used in a Will, but the wording should be such that the intentions of the testator can be known [Section 74 of ISA]

• Written in any language understood by the testator

• Typed or handwritten (holograph Will)

• Stamping is not required

• Registration is not compulsory

• Muslims: ISA does not apply to Muslims. As per Muslim Personal law, a Will can also be made orally and without formal requirements of the ISA.


a. Introductory clause

b. Appointment of executors

c. Direction to recover receivables and pay expenses and dues

d. Legacies and bequests

e. Explanations

f. Testamentary trust clause

g. Residuary bequest clause

h. Donation of organs clause

i. Testimonium and execution clauses

Attachments to the Will


Introductory clause:

“I, [●], of Mumbai, [(religion)] inhabitant, do hereby revoke all my earlier Wills, Codicils and other testamentary dispositions hereto before made by me and declare this to be my last Will and Testament.”

• Name and description of the testator

• Revocation of earlier Wills


Appointment of executors: “I appoint [●] and [●] (who and the survivor of whom are hereinafter referred to as

“my Executors”) as the joint executors of this my Will.”

• Naming of Executors

• Not compulsory to appoint executors

• Who is an executor and what are his duties? • Deceased's funeral [Section 316 of ISA] • Collection of property [Section 319 of ISA] • Payment of debts and expenses [Section 320-322 of ISA]

• Payment of legacies and assent to legacies [Section 332 of ISA]

• Probate + Inventory and account after 6 months and one year [Section 317 of ISA]


Appointment of executors:

• How to choose an executor?

• should ideally be young, competent and trustworthy

• should be younger than the testator so that he survives him, but should not be a minor

• would be better if he is familiar with the testator’s estate (assets and liabilities)

• would be beneficial for at least one executor to have legal knowledge/ background

• preferable to consult the executor before mentioning his name in the Will

• A professional executor such as a bank, solicitor or other professional trustee company may also be appointed

• Executors can be made to act jointly or severally


Appointment of executors: • Executor can be a beneficiary

• Remuneration can be provided for executors

• Can a person named in a Will as executor renounce?

• Yes, he can indicate his unwillingness to execute the Will or renounce being the executor of the Will

• In such case, the executor shall not be entitled to any bequest made to him in his

character as an executor under the Will (and not as a mark of personal regard) if he so renounces [Section 141 of ISA]

• What if the executor dies before distribution of the estate? • Can an executor delegate his duties? • Should executors maintain minutes of meetings?


Direction to recover receivables and pay expenses and dues:

“I direct my Executors to perform my funeral and cremation ceremonies and expend upto Rs. 10,000/- (Rupees Ten thousand only) for this purpose. My executors shall not be required to account for the same to any person whatsoever.

I direct my executors to recover all my receivables, and pay all my debts and

liabilities, probate fees and other liabilities, if any, which may become payable in respect of my death.

I direct that all expenses that may be incurred in connection with my last illness, if

any, such as, for medicines, doctors, hospitalization, nurses, nursing home, etc., which shall remain unpaid as on the date of my death, shall first be paid out of my estate.”

• These clauses are not compulsory because in any case, the executors of the Will

are bound to provide funds for the funeral ceremonies as well as pay off the dues of the testator in accordance with Sections 316, 320-322 of ISA


Legacies and bequests: “I hereby give, devise and bequeath [●] to [●], absolutely and forever” • Most important clauses in the Will

What property can be bequeathed?

• Almost all property belonging to the testator

• Bequests of only that property which belong to the testator at the time of death will be effective.

• Shares – Nomination will override succession [Harsha Nitin Kokate v. Saraswat Co-Op. Bank

Ltd, 2010 (112) BomLR 2014]. If there is joint holding of a DP account, the account will be transmitted in the sole name of the survivor [as per NSDL / CDSL Rules]

• Other assets: These assets can be bequeathed and bequest would prevail over nomination :

• Bank deposits & bank lockers • Life Insurance proceeds • Provident Fund amounts • Flats


Legacies and bequests:

• Immovable Property (land) • No concept of nomination • Such lands can be bequeathed • There is no difference between agricultural land and non-agricultural (N/A) land

• Immovable Property (tenanted premises) – Tenancy rights cannot be bequeathed by Will When the tenant dies, any member of the tenant's family, who,- (i) where they are let for residence, is residing, or (ii) where they are let for education, business, trade or storage, is using the premises for any such purpose, with the tenant at the time of his death would become a deemed tenant. In the absence of such member, any heir of the deceased tenant, as may be decided, in the

absence of agreement, by the court would become a deemed tenant. [Section 7(15) of the Maharashtra Rent Control Act, 1999] • Movable property – movable property can be easily bequeathed



• HUF property –

• A Hindu cannot transfer or bequeath HUF property

• He may bequeath his coparcenary interest in HUF property [Section 30 of Hindu Succession Act, 1956]

• Practically beneficial to bequeath it to the HUF itself

• Life interest in property – Property in which the testator enjoys only a life interest cannot be bequeathed

• Property situated abroad - If a person is making a Will in India he must bear in mind the following rules :

• If the Will is dealing with movable property, it will be governed by the law of the country in which he has his domicile

• If the Will is dealing with immovable property, it will be governed by the law of the country in which such property is situated



• Who can be beneficiaries?

• Heirs

• Non-heirs (including servants)

• Charitable Trusts

• The executor must submit a copy of the Will to the Charity Commissioner – no probate shall be granted if such copy has not been forwarded to the Charity Commissioner [Section 53 of the Bombay Public Trusts Act, 1950]

• Minors

• As a minor is not competent to hold property, it would be advisable to pay it to any major for the benefit of the minor.

• In case no such directions are given, then the executor will be required to pay or deliver such property/ monies to the probate court or a legal guardian of such minor appointed by the Court of Wards [Section 348 of ISA]

• Pets

• Provide directions to executors to use a certain sum of money for upkeep and maintenance


Explanations:

“I declare and confirm that all my investments, bank accounts and financial securities and any other monies and investments which shall stand as on the date of my death in the joint names of myself and any other person or persons and where my name appears first, exclusively belong to me and shall form part of my estate and the names of such other person or persons has or have been merely associated for the sake of convenience only”

• Necessary clarifications or explanations may be made as regards the investments which stand in the joint names of the testator and some other person(s)

• For the sake of clarity a mention may be made in the Will about the gifts made by the testator during his lifetime and explanation given that these assets do not belong to the testator at the time of his death

• If any particular legal heir has been excluded, reasons for the same may also be explained


Testamentary trust clause:

• The testator may direct creation of a trust in respect of his property, appoint trustees for such trust and specify the beneficiaries

• A testamentary trust is especially useful for protection of minors and other dependents

• A testamentary trust does not require stamping

• No additional document is required for creation of testamentary trust

• If a public charitable trust is created by Will, the executor must do the following:

• submit a copy of the Will to the Charity Commissioner – no probate shall be granted if such copy has not been forwarded to the Charity Commissioner [Section 53 of the Bombay Public Trusts Act, 1950 (“BPT Act”)]

• apply to the Charity Commissioner for registration of the public trust - within one month from the date of probate or six months from the testator’s death, whichever is earlier. [Section 29 of the BPT Act]


Residuary bequest clause:

“I hereby bequeath the rest and residue of my properties and estate, of whatsoever kind and wheresoever situated, belonging to me at the time of my death to [●], absolutely and forever”

• Always advisable to have a clause disposing of the surplus/ residue of the testator's property. The person receiving the residue of the estate is called a residuary legatee.

• In the absence of such clause, the surplus/ residue of the property will go as if undisposed and will be distributed as per rules of intestate succession, eg. rules contained in Hindu Succession Act, 1954 for Hindus.

• All legacies which lapse go the residuary legatee [Section 105 of ISA].

• A residuary legatee may apply for letters of administration if no executor is appointed by Will or the appointed executor is dead [Section 232 of ISA].


Donation of organs clause:

• If the testator is desirous of donating his organs (eyes, kidney, body etc) for medical use a separate clause to that effect may be included in the Will

Bequest to executor:

• A clause that the legacy has been given to the executor out of personal regard and that the executor will take the bequest even if he does not prove the Will or manifest an intention to do so, may be provided


Testimonium & execution clauses:

"IN WITNESS WHEREOF I, [●] have hereunto set and subscribed my hand at Mumbai this [●] day of [●] 2014"

"Signed and acknowledged by the withinnamed testator as his last Will and Testament......"

• Attestation by witnesses: [Section 63 of ISA]

• The Will must be attested by at least 2 witnesses

• Attesting means to sign the Will for the purpose of testifying that the attestator has witnessed the testator sign the Will

• No particular form of attestation is necessary

• Each of the witnesses must have seen the testator sign or have received personal acknowledgement by the testator of his signature

• Witnesses must sign the Will in the presence of the testator

• Not necessary that witnesses be present at the same time

• Witnesses need not know the contents of the Will


Testimonium & execution clauses:

• Attributes of attestator

• At least one attesting witness must prove execution of the Will in probate proceedings [Section 68 of the Indian Evidence Act, 1872]. Therefore, it must be ensured that the attesting witnesses :

• Are younger than the testator

• Are known to the testator

• Will be ready to give evidence in probate proceedings

• Advisable that at least one of the attesting witnesses is a medical practitioner

• Witnesses (or their spouses) may be beneficiaries under the Will (except in case of Christians and Parsis) [Section 67 of ISA]

• An executor to the Will may also be an attesting witness [Section 68 of ISA]

• If the attesting witnesses are dead before the death of the testator, it would be prudent to re-execute the Will with new attesting witnesses.


Attachments to the Will:

• Schedule of assets / liabilities

• For older persons, advisable to attach a medical certificate confirming that the testator is of sound mind and health at the time of making the Will

• Photographs of the testator signing the Will in the presence of the Witnesses

• Photographs provide evidence of (1) testator signing the Will, (2) witnesses witnessing the signing, and (3) sound health of the testator.

• They are admissible in evidence under the Indian Evidence Act, 1872

• How do I revoke a Will?

• Automatic revocation upon execution of a fresh Will [Section 70 of ISA]

• By (1) execution of a Deed of Revocation with the same formalities as required for a Will, or (2) by burning, tearing or otherwise destroying the same

• A Will may be revoked by the maker at any time when he is competent to dispose property by Will [Section 62 of ISA]

• Wills made by Christian and Parsi women are automatically revoked by their marriage [Section 69 of ISA]

• A codicil is revoked in the same way as a Will. In the event that you don’t want a subsequent codicil to revoke an earlier codicil, it is important to mention that the second codicil is supplementary or in addition to the earlier codicil and does not intend to revoke it

• How do I make changes to an existing Will?

• Fresh Will: By execution of a fresh Will incorporating all the necessary changes.

• Codicil: By execution of a codicil setting out all the necessary changes to be made to the Will

• A codicil is deemed to form part of the Will.

• A codicil is to be executed in the same manner as a Will.

• The Act is silent on whether the same attesting witnesses need to attest the Will and the codicil, but it would be preferable to do so.

• Obliterations, interlineations or alterations – A Will may also be amended by making obliterations, interlineations or alterations

• Such changes must be executed in the same manner as is required for execution of the Will.

• That is, the signature of the testator and the witnesses is to be made:

• in the margin or on some other part of the Will opposite or near to such alteration, or

• at the foot or end of or opposite to a memorandum referring to such alteration and written at the end of or some other part of the Will. [Section 71 of ISA]

• What if there is an error / ambiguity discovered after my death?

• If such error does not cause any ambiguity, then the courts will give effect to the Will as it is.

• However, if there is any ambiguity then the courts will adopt the ‘armchair rule’ for interpretation of the Will.

eg. a bequest is left for cousin named John, but there are two such cousins named John.

• This means that the judge will put himself in the ‘armchair’ of the testator and ascertain the intention of the testator from the words he has used. The court will inquire into every material fact which would help in ascertaining the intention of the testator [Section 75 of ISA]

• The ISA sets out a number of rules which assist the courts in construction of Wills [Sections 75 to 101 of ISA]

• What happens if a legatee dies before taking his bequest?

• Legatee dies before the testator - the legacy does not take effect, it lapses and devolves as follows: –

• If the testator intended that the legacy should go to some other person, then such person will take the legacy on death of the legatee [Section 105 of ISA]

• If there is no such intention, then the legacy forms part of the residue of the testator's property and goes to the residuary legatee

• if there is no residuary legatee then the lapsed legacy shall vest as per the rules of intestacy

• Legatee dies after the testator - the legacy is vested in him and his representatives become entitled to the same.

• But in order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator [Section 105 of ISA]

• Once executed, where should I keep my Will?

• With lawyer/ executor

• In safe

• In bank locker – Ensure that heirs are aware that Will is present in bank locker and that keys to bank locker are easily accessible otherwise heirs will need an order from the court for breaking open the locker

• Duplicates – A testator may, for the sake of safety, make a Will in duplicate, i.e. replicas of the same Will – one to be retained by him and the other to be kept in safe custody elsewhere

• Both these Wills would be regarded as valid if duly signed and attested.

• If the testator destroys the Will in his possession, that is regarded as revocation of both the duplicates.

• A duplicate Will is not to be confused with a copy of the Will.

• Deposited with any Registrar

• Once executed, where should I keep my Will? • Process of depositing the Will:

• Deposit to be made by the testator personally or by his duly authorised agent.

• In a sealed envelope with the name of the testator or agent and a statement of the nature of the document superscribed.

• Deposit to be made only at the Registrar / Sub-Registrar’s office.

• Exception: On special cause (such as ill health, infirmity) the officer may attend at the residence of any person desiring to present the Will for deposit, and accept such Will [Section 31 of the Registration Act, 1908]

• If the Registrar is satisfied that the person presenting the same for deposit is the testator or his agent, he would accept it for deposit and place and retain the sealed cover in his fire proof box.

• Process of retrieval of the Will:

• Upon the death of the testator, an application must be made to the Registrar.

• If the Registrar is satisfied that the testator is dead, he shall open the sealed cover in the presence of the applicant and cause the contents to be copied in his Book No. 3.

• The Will can also be recovered from deposit under an order of the Court.

• The Registration Act is silent on whether a testator can retrieve the Will from deposit during his lifetime

[Sections 42 to 45 of the Registration Act, 1908]

• How do I register my Will?

• Necessity / benefit for registration

• If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness – Rani Purnima Devi v. Kumar Khagendra Narayan Dev, AIR 1962 SC 567

• Process of registration

• The Will may be presented for registration at any time

• A Will may be presented for registration with any Registrar or Sub-Registrar. However, it would be best to register the Will with the Sub-Registrar where the testator resides [Section 40 of the Registration Act, 1908]

• On special cause (such as ill health, infirmity) being shown, the registering officer may attend the residence of the person registering the Will and accept it for registration [Section 31 of the Registration Act, 1908]

• How do I register my Will? • Process of registration

• Who can register: (i) the testator himself or (ii) after his death, by any person claiming as executor under the Will, or (iii) by any agent or representative of the two [Section 40 of the Registration Act, 1908]

• Agent has to be authorised under a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides

• A Will is to be registered in the same manner as any other document

• A Will shall be registered if the registering officer is satisfied—

• that the Will was executed by the testator

• about identity of the persons appearing before him

• that the person presenting the Will is entitled to do so

• that the testator is dead

• Preferable to register a later Will if the earlier one was registered

• Preferable to register a codicil or a deed of revocation of a Will, if the Will to which it relates was registered

• What is the difference between Probate, LoA and Succ. Certificate? • Probate - copy of a Will certified under the seal of a Court of competent jurisdiction with a

grant of administration to the estate of the testator [Section 2(f) of ISA]

• Probate is granted to the executor appointed under the Will

• Letters of administration - granted to a legal heir for administering the estate of the deceased in the following cases:

• when the deceased has died without leaving a Will,

• no executor has been appointed under the Will, or

• the executor(s) have renounced or the they have died [Section 232 of ISA]

• Upon grant of letters of administration, the administrator becomes the legal representative of the deceased for all purposes. All the property of the deceased person vests in him

• He administers the estate of the deceased till all debts are paid and assets are distributed

• Succession certificate - gives the grantee (the person to whom the certificate is granted) authority to recover the debts and securities due to the deceased

• Payment made to such grantee is a good discharge of a debt

• Such a certificate does not establish the title of the grantee as the heir of the deceased or give any general power of administration of the estate of the deceased

• Does my Will require a probate? • When is a probate required - No right as executor or legatee can be established in any court,

unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed [Section 213 of ISA]

• In case of Wills made by a Hindu, Jain, Sikh, Buddhist, Section 213 is applicable only to the following classes of Wills which fall within section 57(a) and (b):

(a) all Wills made by any Hindu, Jain, Sikh or Buddhist within the local limits of the ordinary original civil jurisdiction of the High Courts at Madras and Bombay

(b) all such Wills made outside those territories and limits if they relate to immoveable property situate within those territories or limits

• Probate may also be required if so required by the bank or other counterparty for the purpose of transmitting any property from the testator’s name to that of the heirs

• Who can apply for a probate?

• Probate will only be granted to an executor appointed by the Will [Section 222 of ISA]

• Probate cannot be granted to any person who is a minor or is of unsound mind nor to any association of individuals unless it is a company [Section 223 of ISA]

• When several executors are appointed, probate may be granted to them all simultaneously or at different times [Section 224 of ISA]

• Tell me more about probates.. • Rights of executors in property before probate/ in absence of probate

• An executor derives his title from the Will, and not from the probate

• Without obtaining the probate, he may do things that appertain to his office such as:

• take possession of the testator's property

• pay or take releases of all debts owing from the estate

• receive or release debts which are owing to it

- Ramchandra Ram Ratan v. Ram Gopal OnkarJi and Ors., AIR 1957 MP 31

• Upon grant of the probate, such intermediate actions of the executors are rendered valid from the date of the death of the testator [Section 227 of ISA].

• Consequences of obtaining probate

• Probate authenticates and is conclusive as to the due execution and validity of the Will against the entire world - Bali Ram Dhote v. Bhupendra Nath Banerjee and Ors., AIR 1978 Cal 559

• The representative title of the executors becomes conclusive against all debtors of the testator and all persons holding property which belongs to him

• The probate has effect over all the property of the testator

• Affords full indemnity to all debtors paying their debts and all persons delivering up such property to the person to whom such probate has been granted

[Section 273 of ISA]

• Tell me more about probates.. • Court - In Mumbai, the probate court is the Hon’ble Bombay High Court

• Time limit - Application for probate must be made within 3 years from the death of the deceased, else the reason for the delay must be explained in the petition. [Bombay High Court Rules, Rule 382]

• Court fees – Based on the amount or value of the property in respect of which the grant of probate is made:

If amount or value of property > Rs. 3 lakhs, court fees =

7.5% on amount or value in excess of Rs. 3 lakhs or Rs. 75,000, whichever is higher [Bombay Court Fees Act, 1959]

• Foreign probate obtained - ‘Ancillary probate’ is to be obtained in an Indian court in respect of a Will which has been probated abroad [Section 228 of ISA]

• Foreign probate not obtained - Probate can be obtained in the normal way under the ISA

• Matters relating to capacity of testator, formal validity and essential validity of the Will will be regulated by the lex domicili or lex situs as the case may be

• Can probate be obtained if Will is lost/mislaid/destroyed ?

• If the Will has been lost or mislaid since the testator's death, or has been destroyed by wrong or accident and not by any act of the testator –

• Copy has been preserved - probate may be granted of a copy, limited until the original Will or a properly authenticated copy of it is produced [Section 237 of ISA]

• No copy has been preserved - probate may be granted of its contents if they can be established by evidence [Section 238 of ISA]

• If registered, then certified copy from registrar admissible as secondary evidence [Sections 63 and 65 of Indian Evidence Act, 1872]

• If no Will is forthcoming, but there is reason to believe that there is a Will in existence, letters of administration may be granted, limited until the Will or an authenticated copy of it is produced. [Section 240 of ISA]

Thank you!

presentation by - ctconline.org - allie…-presentation by shaishavi kadakia ... •creation of a...

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