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Pritam Gupta (Teacher)     20 December 2014

Of trusts and wills

Knowledgable advocates, your response to this topic will be very helpful to me.

A person in his deed of Will and testament in India has stated as follows:

"........This Will and Testament witnesseth that in consideration of my properties I hereby appoint constitute to form the Board of Trustees........and I hereby affirm that immediately upon my death my properties will stand conveyed, granted and transferred to the said Board of Trustees..........."

This Will itself was then signed by all members of this Board of Trustees at the very bottom as a "Token of Acceptance" (besides other signatures of witnesses etc) . Pertinent to say here that all the members of this Board of Trustees are the testators five sons and daughters, who are also the ultimate beneficiaries as well.

My questions are:

1. Is this a Testamentary Trust? OR, Is this a pour-over Will with a Trust concurrently executed with the Will? i.e. Has the Trust been already formed as the Will was executed or it will only be formed after probate?

2. Does this kind of Trust need to be registered?


P.S. The Will itself was not registered but it followed all standard practices required of a Will.


 15 Replies

ROHIT SHARMA (Legal Advisor )     20 December 2014

1. By going through the contents of the Will, this board of trustees is a private trust and need not be registered.

2. Such appointed trustees need to get a letter of administration from civil court. 

3. If need be for further private consultation get my contact details by clicking my name shown in the L.H.S. margin of this reply format.

Pritam Gupta (Teacher)     20 December 2014

Thank you Sir for your reply.

But by my first query I meant to ask whether this Trust will be activated after the probate of this Will or it was activated when the Will was executed. Then the two possible scenarios are:


(a) If the latter is true, then can't it be said that since the Will itself and the embedded Trust was created during the execution of the Will (while testator was alive) and "accepted" (Section 10 of Indian Trusts Act,1882) as aforesaid by members of the created Board of Trustees, then such  members are in a legal obligation to jointly probate this Will and cannot object to it (Section 11 of Trusts Act)?

(b) And even if the Trust is activated after the death of the testator and after the probate of the Will, (Testamentary trust?) then is there any legal obligation for these board of Trustee members not to object to the probate of the Will since they "accepted" the trust conditions during the lifetime of the Testator?

Therefore I want to know which of the two above available options is applicable in this case if any?

This question arose because some members of this Board of Trustees are contesting the Will and the embedded and created Trust after "accepting" the same with their signatures in the Will itself.

Biswanath Roy (Advocate)     23 December 2014

From the given statement related to your query it appears that the intention of the executor is that after his death the trust will start functioning as a private trust. This is a testamentary trust, hence it must be probated from the court of law. Thereafter you shall have to make a Deed of Trust incorporating the names of the Board members as contained in the will  as trustees therein and shall have to get it Registered.

1 Like

Pritam Gupta (Teacher)     23 December 2014

Thank you for your reply respected Advocate Biswanath Roy  and I sincerely hope that you are keeping good health. As always your replies are succinct and precise and therefore very helpful.

But maybe I did not make myself clear enough, but the main reason for posting this query is that I wanted to know whether it is right, that since the Board of Trustees members has already "accepted" the Will in front of the testator by their signatures in the bottom  of the Will itself, then they should not be able to contest the Will anymore.

My reasoning was that firstly they are bound by their signatures to accept the Will. Secondly this Trust itself has been validly created as per Section 5 and 6 and "accepted" as per Section 10 of The Indian Trusts Act, 1882. Then Section 11 of same Act says that "trustee is bound to fulfil the purpose of the Trust,......" and Section 48 says "When there are more Trustees than one, all must join in the execution of the Trust....". Therefore the contest of Will by some Board of Trustee members  should be illegal.

The problem now is that when one member of the Board of Trustees has gone to probate court to probate the Will and activate the Trust ,some other members are now objecting the Will and preventing the transfer of the properties to the Trust when they had earlier themselves "accepted" the Will and the Trust by their signatures in the bottom of the Will in front of the Testator.

Therefore please let me know whether my line of reasoning can be used to quash this contest of the Will? Or is there some other line of thought?


P.S. There is an administrator and a Chairman of the Board of trustees mentioned in the Will but no executor of the Will itself has been mentioned. So all members of the Board of Trustees who has "accepted" this Will should join hands to probate this Will and transfer the properties to the Trust? So isn't contest of this "accepted" Will illegal?

Biswanath Roy (Advocate)     23 December 2014

You may mail me a scanned copy of the WILL to meet your query.. There are certain intricate point of laws are involved.

Biswanath Roy (Advocate)     25 December 2014

Regarding your P.S.  look at your query. wherein you quoted  a portion of the will as such " and I hereby affirm that immediately upon my death my properties will stand conveyed, granted and transferred to the said Board of Trustees..........." Therefore properties of the deceased were already  transferred to the Board of Trustees. At first you make a Deed of Trust in consonance to the will  and get it registered and thereafter proceed for obtaining  probate    Once the trust starts functioning subsequent objection by any trust member during probate shall not be legally maintainable. If you feel difficulty to prepare the Deed of Trust in accordance to the Will  you may take my help if you desire so.

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T. Kalaiselvan, Advocate (Advocate)     25 December 2014

Besides advises by the above experts, I shall reproduce some valid information which will be useful to you under the given situation:

A trust of immoveable property can be created by two ways. One by a non-testamentary document and another by a testamentary document such as a will. In other words, a trust regarding a immoveable property cannot be created orally but it must be by a document duly registered. A trust of a moveable property can be created either by a document or delivering the property to the trustee with necessary oral directions. If the directions are given in writing it would amount to a trust by a non-testamentary document which may or may not be registered.

A trust is not a contract of agency to hold the property, as in that case there would be no transfer of the property. In trust there is a transfer from the owner to the trustee subject to certain terms and conditions.

A trust is essentially a transfer of property by one to the other to be held by the other for the benefit of some person or for carrying out some object. It is no also a sale because a sale cannot be conditional and in sale there is consideration which is absent in a trust. The purpose of a trust must be lawful, that is,

It should not be of such nature that, if permitted it could defeat the provisions of any law.

It should not be forbidden by law.

It should not be fraudulent.

Hope the above will suffice for now.

1 Like

Pritam Gupta (Teacher)     25 December 2014

Thank you Advt Biswanath Roy again for your reply. This is the answer I was looking for. 

Currently the Will has been submitted to probate court, but it has been contested as aforesaid in this post. The contested proceedings are yet to commence.

I will convey your advise to this trustee who had submitted the Will for probate and get back to you shortly.

But 2 points from your statements would help if clarified.

1. You have said "At first you make a Deed of Trust in consonance to the will  and get it registered and thereafter proceed for obtaining  probate". Then will there be a problem in getting the Deed of Trust" on the basis of statements from an unprobated Will? I have read somewhere that until probate, conditions in the Will supercede the Trust conditions but after probate and after the properties are poured in to the trust, then the Will becomes ineffective and the Trust conditions takeover.

2. Is this registration of the Trust mandatory? This is because Section 5 of The Indan trusts Act, 1882 states that "No Trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the Trust or the trustee and registered or by the Will of the author of the Trust or of the Trustee". Now since the Trust here is in relation to an immovable property, so it appears that for an immovable property a testamentary trust like the case in hand might not require registration ??

Earlier there were certain movable items as well to be transferred to the Trust but the Trustees unanimously divided these assets amongst themselves. So the only property remaining right now are immovable in nature.

The Will is rather long encompassing all of the testators assets and including various directions on trustees, otherwise I would have easily scanned it and emailed it to you. Therefore I have quoted here the important and relevant portions only, though I realize that all information is not available at a glance in such a scenario.

Biswanath Roy (Advocate)     25 December 2014

In my post before last I stated that there are some intricate point of laws are involved which speaks for itself. But who advised you to obtain probate of the will first?  Why don't you made the Deed of Trust first and then filed a petition for probate of the Will? Who advised  you  to jump upon the probate?

T. Kalaiselvan, Advocate (Advocate)     25 December 2014

Your point number two stands clarified that  a trust regarding a immoveable property cannot be created orally but it must be by a document duly registered.  I have given my opinion in my previous post about it.   As far as you point number one, respected Roy sir has given clarification in his latest post.  You are welcome for anymore clarification in this regard though it appears that you are fully convinced about what is to be done now in the prevailing situation.

Pritam Gupta (Teacher)     26 December 2014

Adv Biswanath Roy, in answer to your query, the probate was filed as per advice from some advocates. But since it has already been filed and stands as " to be contested" as of date, so what is the modus operandi at ths stage?

Can a stay be obtained in the probate proceedings and a Deed of Trust be filed? Or whether a stay is not required and a Deed of Trust can be filed anyway. Please remember that in that case the Deed of Trust will be filed relying on statements from an unprobated Will. Also as far as I know, the trust activities are monitored by probate court itself?

Biswanath Roy (Advocate)     26 December 2014

In your original query which was placed before us about 6 days ago for our opinion, you categorically mentioned that the testator conveyed all of his properties to the Trust and after the death of the testator trust will be the owner of all of his properties.  Subsequently and in recent past you informed us that movable properties of the testator were appropriated by the trustees among themselves amicably and converted those properties as their own individual property from which it transpires that you suppressed this material fact at the time of placing your query.  Why such duplicity? Secondly, the testator conveyed all of his properties to the trust which significantly means and includes his movable and immovable properties under such a position how trust members can amicably swallowed trust properties ? Does it not attracts criminal liabilities?

In view of the above I am sorry to say you are not faithful and dependable person to me . Hence, without going through your all papers and documents I SHALL NOT OPINE WITHOUT PROFESSIONAL TERMS.

Pritam Gupta (Teacher)     26 December 2014

Sir, there is no "duplicity" and no question of being "unfaithful" or "undependable". All incidents that happened for so many years and all directions/points concerned in a very long Will cannot be said at one go in a few lines at the outset of a thread. Only the relevant and most important points at the present time have been stated in the beginning  and if additional points are required they will be mentioned as deemed necessary. This is only natural in a forum post where limited data can be input.

As the question at the present time revolves around remaining immovable properties only, so the properties that have been earlier disposed of, carries little significance in my opinion. Regarding your stated point about criminal liabilities, please remember that Section 43 of the The Indian Trusts Act gives such a power when all trustees act in unision or are unanimous in their decision, if "contrary intention is not expressed in the instrument of trust". Further the Testator also has given such a power in his Will where trustees can change directions as given in the Will by "unanimity". 

It is ironic that you have not stated in the end regarding the simple question of whether a Deed of Trust should be applied for now when Will has already been submitted for probate (and is being contested) or not. Shouldn't probating the Will itself bring forth the issues that will arise while obtaining the Deed of Trust? Also if you remember the most important question asked by me in this matter is whether the Trustees can transgress on their signed "acceptance" of the Will in front of the testator, and now contest the Will? That question itself has also remained unanswered.  Therefore in the absence of any clear directions, your earlier advises have become a nullity in this case.


I have heard that this case deals with matters that can only be dealt with appropriately by advocates who specialize in Wills and Trusts. That said however, I will forward the entire transcriptt of this thread to the Trustee who is desirous of successfully probating the Settlor's Will at the present time and stop further erosion of the Settlor's assets. And should this person feel necessary then he will contact you directly. This person is a close relative of mine and I have only presented his case here on his behalf.

Thank you again for your interest in this topic. 

Biswanath Roy (Advocate)     26 December 2014

There are altogether 48 types of wills wherein characters and obligations of beneficiaries are main criteria. If everybody claims mastery on the subject where thy we stand. When will is being contested ( although on what ground not mentioned) rather challenged in the court question of proceeding with the Trust at he present moment  does not arise.

I believe interest begets interest..

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