Will Under Indian Law - 1

 Kindly refer Part 1

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11.Witnesses:-

Witnesses must possess the capacity to act as Such. Because an attesting witness must be capable of physical and mental presence when the tesator signs the Will. Blind persons and persons of unsound mind cannot be competent witnesses. It is important to note that a beneficiary or his/her spouse should not witness a Will "Benefit" includes the benefit of a charging clause given to an executor. It is normal to include such a clause in a Will appointing a professional executor, for example, an Advocate. ln such a case the Advocate/Executor shall not act as a witness. It is advisable, non-beneficiary witnesses alone shall sign on the Will.

12.Choice of Executors:-

The choice of appointing an executor depends upon the settled views of the testator. Appointing an executor's depends on several factors. The size and nature of the estate. If the estate is small or when there is only one beneficiary, no executor's appointment in the Will is necessary. Normally, a professional appointee Will wish to charge for his services. When there is a sole beneficiary, the same beneficiary is appointed in the Will as an executor. However, it would normally be unwise to appoint one of several beneficiaries to act alone, because of the danger that a conflict of interest would arise. As far as possible, the appointment of an executor shall be avoided. Particularly an advocate shall never be appointed. For the simple reason, an advocate Will drag on the matter for his livelihood. If the estate is small, it becomes financially burdensum on the part of beneficiaries.

13. 'Testator',"Testatrix':-

The word Testator is used for mascular gender. “Testatrix” is used for feminine gender.

14. Free from Fraud/Coercion/Undue influence :-

A Will becomes void if the making of which has been caused by fraud or coercion or by such importunity. (Section 6l of Indian Succession Act, 1925).

15. Registration of a Will:-

Under Section 17 of the Indian Registration Act, 1908, registration of Will is not compulsory. Section 17 deals with the compulsory registration of documents. Nothing is mentioned in the said Section that a Will as a document is compulsorily registerable. However, under Section 18(c), the Indian Registration Act, 1908, the registration of a Will is optional. It is mentioned that a Will is only optionally registerable.

Thus there is nothing under law which requires the registration of a Will and therefore no inference can be drawn against the genuineness of a Will on the ground of which non- registration. At the same time the Courts may not accept a Will as genuine, even though it is registered.

16. Registration is desirable :-

It is always wise to register a Will since the authorized copy of the Will, Will be available with the Sub-Registrar and can be made use of it, if the copy of the Will is lost.

17. Will can be probated:-

A Will can also be probated. Probate means certification of the will by a court under its seal. When a Will is probated, it conclusively establishes the fact that a valid Will was made. Sometimes for transfer of certain immovable properties, probate of the Will is necessary. It may be noted that a Will which is not probated is also perfectly valid.

18. Advantages of Registration:-

·       If a Will is registered, it cannot be tampered with, stolen, destroyed, or mutilated.

·       If a Will is registered, it Will be in the safe custody at the office of the Sub-registrar.

·       If a Will is registered, the secrecy of the Will, Will be maintained, since nobody can examine the contents of it. Section 57(2) of the Indian Registration Act,1908, provides that a certified copy of a Will can be given only to the testator or his agent. It is only after the death of the testator of the Will, a certified copy Will be granted to any person applying for it and also producing the Death Certificate of the testator issued by the competent authority.

·       If a Will is registered and uncontested by any person after the death of the testator, it becomes easy to get the properties mutated in the name of the legal heirs without obtaining a probate of the Will by any Court.

·       The fact that a Will was duly registered after it had been executed ordinarily removes any ground for suspicion (Mahindranath vs. Netai Charan, ILR, 1943(1)Cal.392).

19. Biggest advantage:-

The biggest advantage in writing a Will is this. The property given through a Will automatically gets transferred to the person or persons to whom the property is given without requirement of any further action on the part of the person getting the property. For example, if a person gets a piece of land or a house through a Will, he becomes the owner of that property. He need not execute any document nor go to Sub-registrar's office, for registration for changing the property to his name. When the testator dies, the beneficiary or beneficiaries shall obtain a death certificate either from the Municipality, Gram panchayat or Revenue authorities (whoever is incharge), and also a death certificate from the hospital, if the testator dies in a hospital. For change of name in the revenue records in case of agricultural land, and in case of change of name in house properties situate in Gram Panchayat/Municipal records for change of name in water meters and also in electricity records the beneficiary/beneficiaries shall apply to the concerned authorities along with a certified copy of death certificate (not original) along with a certified copy of the document of Will (not original), for change of name/names in the concerned records. Similarly, a person can get any securities transferred to his name by submitting a certified copy of the Will to the Company. No transfer deed or stamp duty is required as transfer takes place by the operation of law.