Frequently Asked Questions On Will

QUERY #1

Can you write a will for a property that is not yet under the ownership of the testator? The said property is currently stuck in administrative faults.

ANSWER:

The short answer to your question is YES. You may write the will for a property that will be under the ownership of the testator in the future. 

The laws relating to the creation and execution of a will is governed by the Indian Succession Act of 1925. According to this act, any person, irrespective of the fact that they are deaf, dumb, or blind, or has any other disability, can create a will if they are aware of the consequences of their action. The only requirement is that the testator should be of sound mind so as to be aware of the consequences of writing a will and bequeathing property to someone.

Here, since the property is going to be under the ownership of the testator in the future, and is not so at the present moment only due to it being stuck in administrative faults, it is perfectly valid to write a will where the property in question shall be bequeathed to you, and the only requirement to do is to provide valid details of the property so that it can be identified by the  court when the will is given for probate.

It must be noted that section 2(h) of the Indian Succession Act defines a will to be a legal declaration of the intention of a testator with regard to his property which he desires to be carried out after his death. It is evident from the above definition that a will can be made only for a property that is under the ownership of the testator, and no provisions exist for a property that will be under the ownership of the testator in the future.

Therefore, after the will is created, it must be ensured that the property be transferred to the ownership of the testator as soon as possible, as otherwise, the terms of the will will be void with respect to this specific property.

I hope this helps. Thank you for your time and patience!

QUERY #2

My father had written a will and had gotten it notarized. His assets are divided between me, my sister and my mother. After his death, a dispute arose between my sister and the rest of us. After receiving advice from an advocate, we filed  a declaration suit. But another advocate is suggesting that we should have gone for a probate. Which one should I go for?

ANSWER:

The short answer to your question is NO. You should go for a probate instead.

Assuming that the property in question is self acquired, no person can object to a will made by a person with regard to his self acquired property as section 30 of the Hindu Succession Act, 1956, states that any Hindu can dispose of a property that is under their possession through a will, in accordance with the provisions of the Indian Succession Act.

Therefore it would be invalid to question the terms of a will, but an unregistered will can be questioned for its authenticity and chances of forgery. It must be understood that it is not mandatory in India to register a will, and therefore even an unregistered will is perfectly valid, provided there are witnesses present to attest for the authenticity of the will. If it can be proved in court that the unregistered will is valid, then the terms of the will can no longer be objected to by any one.

Section 2(f) of the Indian Succession Act defines probate as a copy of a will that has been certified by a court of competent jurisdiction through its seal, with a grant of administration of the will of the estate of the testator.

Section 34 of the Specific Relief Act, 1963 describes the purpose of a declaratory suit. In simple words with relation to this case, it can be read as: Any person who is entitled to or has the right towards some property, can file a suit against a person who is denying this right, and the Court in its discretion can make a declaration that this person is so entitled, and the plaintiff is barred from seeking any further relief in such suit.

Hence, a probate suits the purposes of this case more as if the authenticity of the will can be proved in Court, no objections towards the terms of the will can be raised by any of the legal heirs. Filing a declaratory suit would do the same thing as the Court would declare that you have the right towards this property but that would also require the Court to ensure the authenticity of the will first, and it also bars seeking any further relief from this suit. Filing a probate does the same thing, and also ensures that the terms of the will are not objected to.

I hope this helps. Thank you for your time and patience!

QUERY #3

My father owned a house in India which after the death of both my parents, was to devolve upon his two sons equally. But one of his sons passed away so I am the only legal heir left. Do the two adult children of my brother have a share in this property? Are they his legal heirs? Can I sell this property myself?

ANSWER:

The short answer to your question is NO. The brother’s children are his legal heirs if he died after the death of your father.

The laws and regulations concerning the creation and execution of will are governed by the Indian Succession Act of 1925. According to this act, any person, irrespective of any disability like being deaf, dumb, blind, or ordinarily insane, may create a will provided that at the time of creation of the will, they are of sound mind and aware of the consequences of their action.

Assuming that your brother died after the death of your father, half the property was already under the ownership of your brother. After his intestate death, his property shall devolve upon his legal heirs, as per section 8 of the Hindu Succession Act, 1956. Here, his two sons are his legal heirs, and therefore the property may devolve upon them.

If your brother died before the death of your parents, then one of the legatee is now a person not in existence at the time of execution of the will, therefore you may receive the share of property that you were bequeathed to as per the will, and the rest of the property will be considered as residual property,and since you are the only surviving legal heir of your father, it shall devolve upon you.

I hope this helps. Thank you for your time and patience!

QUERY #4

I am a 40 year old paraplegic who has been in bed for over sixteen years. My parents used to care for me until their death. My father had written a will for one of his houses, and made me the beneficiary along with the rights to sell it if I desire. My brother does not want to give me the house and so he tore the original will. Is it possible for me to get a copy of the will from the sub registrar office?

Can I appoint a caretaker for my legal needs?

ANSWER:

The short answer to your question is YES. You may get a certified copy of the will from the Registrar.

A will, according to section 2(h) of the Indian Succession Act, 1925, is defined as the legal declaration of the intention of the testator with regard to his property which he desires to be carried into effect after his death. According to section 59 of the same Act, any person may create a will irrespective of their disabilities like being deaf, dumb, blind, or ordinarily insane, provided at the time of creation of the will you are of sound mind and aware of the consequences of your actions.

It is not mandatory in India to register a will, but they can be registered at the office of the sub-registrar. As per section 57(2) of the Indian Registration Act, 1908, the registering officers in the office of the sub-registrar must hand over certified copies of the entries in Book no. 3, which pertains to wills, to the persons or agents of such persons who are executing such documents or wills. Therefore, the registering officer is legally bound to provide you with a certified copy of the will.

For a legal care-taker, you may appoint a power of attorney, which according to the Power of Attorney Act, 1882, refers to any instrument that empowers a specific person to act on behalf of the principal or the person executing it. You may therefore give specific powers to this person to help you with legal matters.