ഒസ്യത് അഥവാ വിൽപത്രം പോക്കുവരവ് ചെയ്യുമ്പോൾ .....? Will pathram-osiath pokkuvaravu

ഒസ്യത് അഥവാ വിൽപത്രം പോക്കുവരവ് ചെയ്യുമ്പോൾ .....?Will pathram-osiath pokkuvaravu

1. വിൽ പത്രം(WILL) പപോക്കു വരവ് ചെയ്യു�രിന്ചെ നടപടി ത്രമങ്ങൾ

പപോക്ക് വരവിനോയി ഒരു WILL (ഒസ്യത്ത്) ഹോജരോക്കചെടുപപോൾ
ഏറ്റവും അവസ്ോനം എഴുരിയ സ്ോധുവോയ ഒസ്യത്തോയിരു�ു അചര�്
െവനയു ഉപ്യോഗസ്ഥന് രീരുമോനിക്കോൻ രഴിയില്ലപല്ലോ. വിൽപത്രം(WILL)
രജിസ്റ്റർ ചെയ്രിരിക്കണചമ�് നിർബ�മില്ല.അപെോഴുള്ള സ്ോക്ഷിരൾ
ജീവിച്ചിരിക്കണചമ�ുമില്ല.
അത് പപോചല് രച� ബ�ചെട്ട SRO യ്ക്ക് പുെത്തുള്ള ഏത് SRO യില്ും
ഒസ്യത്ത് അഥവോ WILL രജിസ്റ്റർ ചെയ്യോവു�രോണ്. രൂടോചര ഒസ്യത്ത്(WILL)
രർത്തോവിന്ചെ ജീവ ്ശയിൽ നില്വില്ുള്ള ഒസ്യത്ത് െ�് ചെയ്യു�രിപനോ
പേ്ഗരി ചെയ്യു�രിപനോ സ്ോധിക്കു�രോണ്. ആയരിനോൽ ഒരു വയക്തി
അവസ്ോനമോയി എഴുരിയ ഒസ്യത്തിനോണ്(WILL) നില്നിൽെുള്ളത് .
അരിപനക്കോൾ അവസ്ോനമോയി എഴുരിയ മചറ്റോരു ഒസ്യത്ത് പവചെോരു
അനന്തരോവരോശിയുചട രയ്യിൽ ഉചെങ്കിപല്ോ? .ഇത് ഉെെ്
വരുത്തു�രിനോയോണ് എല്ലോ അനന്തരോവരോശിരൾക്കും പരഖോമൂല്ം
പനോട്ടീസ് നൽരു�ത്. മോത്രമല്ല സ്മെിത്തരയുള്ള ഒസ്യത്ത് രർത്തോവ്
സ്വമനസ്സോചല് എഴുരിയ ഒസ്യത്തിന് മോത്രപമ നിയമ സ്ോധുരയുള്ളൂ.
ആയരിനോൽ ഹോജരോക്കചെട്ട ഒസ്യത്ത് ഉടനടിപപോക്ക് വരവ് നടത്തി
നൽരിയോൽ മരണചെട്ട വയക്തി സ്വബു�ിയില്ലോത്ത ആളോണ് അചല്ലങ്കിൽ
േീഷണിചെടുത്തിയോണ് ടി വയക്തിചയചക്കോെ് ഒസ്യത്ത് എഴുരിച്ചിട്ടുള്ളത്
അചല്ലങ്കിൽ ഒെ് വയോജമോണ് മുരല്ോയ രോരണം ഉ�യിച്ച് മറ്റ് ബ�ുക്കൾ
പരോരി നൽരിയോൽ നോം നിയമത്തിന്ചെ മുപിൽ ചരറ്റുരോരോരും .Legal
Heirs ഇത്തരം ആപരോപണം ഉ�യിക്കുപപോൾ WILL( ഒസ്യത്ത്) probate
(Probate Is a copy of the Will, certified under the seal of a competent Court). ചെയ്യോൻ
ആവശയചെടു�ത് ഉെിരമോയിരിക്കും . WILL രജിസ്റ്റർ ചെയ്യണചമ�ില്ല.

വിൽപത്രം(WILL) പപോക്കു വരവ് ചെയ്യു�രിനോയി അപപക്ഷ ല്േിച്ചോൽ ടി
അപപക്ഷപയോചടോെം വിൽപത്രവും ,List certificate-ഉം encumberence
certificate-ഉം Death Certificate-ഉം രൂടി ഉചെങ്കിൽ Transfer Registry
Rule 27 ത്പരോരമുള്ള രീരിയിൽ അവരോശ വിെോരണ പപോക്ക വരവ്
ചെയ്യോം. Notary affidavit ആവശയമില്ല

Law of Wills in India

2. A Will is a document which ensures that your wishes with respect to your assets and
property are followed after your death. There often arise problems and complications
when a person dies without a Will. Yet we put off making a Will, not realizing the
predicament we put our family in, after our death. It's a
little effort that goes a long way. You will find the answers to the questions you may have
had on making your Will, registering it and other relevant information.

Definitions:

A Will is defined as "the legal declaration of the intention of the testator, with respect to his
property, which he desires to be carried into effect after his death."

In other words, a Will or a Testament means a document made by person whereby he
disposes of his property, but such disposal comes into effect only after the death of the
testator.

Codicil:
Is an instrument made in relation to a Will, explaining, altering or adding to its
dispositions and is deemed to be a part of the Will.

Executor: Is the legal representative for all purposes of a deceased person (testator) and
all theproperty of a testator vests in him.

Legatee/Beneficiary: Is a person who inherits the property under a Will.

Probate: Is a copy of the Will, certified under the seal of a competent Court.

Testator: Is a person making a Will and executing it Essential Characteristics

Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e.
inconformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the
person making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be
intended to take effect after his death.


Revocability: The essence of every Will is that it is revocable during the lifetime of the
testator. People capable of making Wills are, every person who is
•not a minor
•of sound mind
•free from fraud, coercion or undue influence

3. Forms and Formalities:

Form of a Will:
There is no prescribed form of a Will. In order for it to be effective, it needs to be properly
signed and attested. The Will must be initialed by the testator at the end of every page
andnext to any correction and alteration.

Language of a Will: A Will can be written in any language and no technical words
need to be used in a Will, however the words used should be clear and unambiguous so that
the intention of the testator is reflected in his Will.

Stamp Duty: No stamp duty is required to be paid for executing a Will or a codicil. A
Will, therefore, need not be made on stamp paper.

Attestation: A Will must be attested by two witnesses who must witness the testator
executing the Will. The witnesses should sign in the presence of each other and in the
presence of the testator.

Under Parsi and Christian law, a witness cannot be an executor or legatee. However,
according to Hindu Law, a witness can be a legatee. A Muslim is not required to have his
Will attested if it is in writing.

Registration: The registration of a document provides evidence that the proper parties
had appeared before the registering officers and the latter had attested the same after
ascertaining their identity. In India, the registration of Wills is not compulsory even if it
relates to immoveable property. The non-registration of a Will does not lead to any
inference against the genuineness of a Will. In other words, registration therefore does not
give any special sanctity
to the Will though registration of the Will by the testator himself evidences the genuineness
of the Will.
Whether registered or not, a Will must be proved as duly and validly executed, as required
by the Indian Succession Act. Once a Will is registered, it is placed in the safe custody of
the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen.

Procedure for Registration: A Will is to be registered with the registrar/sub-
registrar with anominal registration fee. The testator must be personally present at the
registrar’s office alongwith witnesses.
Revocation and Amendment: A Will can be revoked, changed or altered by
the testator at anytime when he is competent to dispose of his property. A person can
revoke, change or alter his Will by executing a new Will, revoking the earlier Will,
registering the new Will (if the old Will is registered), destroying the old Will or by making

4. a codicil. On the marriage of a Parsior a Christian testator, his/her Will stands revoked,
this however does not apply to Hindus, Sikhs, Jains and Buddhists.

Codicil:
A codicil is an instrument made in relation to a Will, explaining, altering or
adding to its dispositions and is deemed to be a part of the Will. A codicil has to be
executed and attested like a Will. A codicil is similar to a Will and is governed by the same
rules as a Will.

Probate and Letters of Administration

Probate: A probate means a copy of the Will, certified under the seal of a competent
Courtwith a grant of administration of the estate to the executor of the testator. It is the
officialevidence of an executor's authority. A probate is mandatory when the Will is
executed by aHindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or
pertains toimmovable property situated in Mumbai, Calcutta or Chennai.

Effect of grant of probates: A probate granted by a competent court is conclusive evidence
of the validity of a Will until it is revoked and no evidence can be admitted to impeach it
exception a proceeding to revoke the probate. However, it only establishes the legal
character of the executor and in no way decides the title or even the existence of the
property devised. The grant of the probate decides only the genuineness of the Will and the
executor’s right to represent the estate.

•The grant of a probate is conclusive evidence of the testamentary capacity of the
person who made the Will.

•A probate is conclusive as to the genuineness of the Will and appointment of the
executors.

•Once a probate is granted, no suit will lie for a declaration that the testator was of
unsound mind.

•Probate is conclusive as to the representative title of the executor.

To whom probates can be granted: Under the Indian Succession Act, 1925, a probate can
be granted only to an executor appointed under a Will. However, it cannot be granted to a
minor,
a person of unsound mind, or to association of individuals, unless it is a company that
satisfies the conditions stipulated by the government.

When a probate can be granted :A probate cannot be granted until the expiration of seven
days from the date of the testator's death.

Letters of Administration: In the event a person dies intestate or a Will does not name any
executor, an application can be filed in the courts of law for grant of probate.

5. To whom can a LOA be granted: Under the Indian Succession Act, 1925, a LOA can be
granted to any person entitled to the whole or any part of the estate of the deceased person.
However, it cannot be granted to a minor, a person of unsound mind, or to association of
individuals, unless it is a company that satisfies the conditions stipulated by the
government
.
When can a LOA are granted: A LOA cannot be granted till the expiration of fourteen
days from the date of the testator's death.

Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e.
inconformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the
person making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be
intended to take effect after his death.

Revocability: The essence of every Will is that it is revocable during the lifetime of the
testator. People capable of making Wills are, every person who is:
•not a minor
•of sound mind
•free from fraud, coercion or undue influence
Executors:
An executor is a person who is appointed by a testator to execute his Will. In other words,
an executor is duty bound to distribute the assets of the testator as per the provisions of his
Will.

A probate of a Will is granted only to an executor appointed by the Will.

Who can be an Executor: All persons capable of executing Wills can be executors. Even a
minor can be appointed an executor of a Will, but a probate cannot be granted to the
minor until he attains majority. A testator can appoint one or more executors. The
appointment of an executor may be absolute or for a limited purpose or limited time. An
executor as such does not derive any benefit under the Will, unless specifically provided
for. However, as an executor
has vast powers and the property vests in the executor until it is finally distributed to the
legatees, it is therefore advisable to appoint a responsible and accountable
person/institution such as a bank as an executor. The Executor is primarily appointed to
manage the estate ofthe deceased for the benefit of the beneficiaries/legatees under the Will.

Legal status of the Executor: The executor is the legal representative for all
purposes of a deceased person and all the property of the testator vests in him until the
property is distributed as per the provisions of the Will. The executor is entitled to
represent the testator in any legal action (not including criminal or defamatory

6. proceedings). For example, an executor can sue for recovery of the testator’s debts. It is
only the legal estate of the deceased that vests in the executor and the vesting is not of
beneficial interest. The property vests in the
executor only for the purpose of representation and administration.

Duties of an Executor:

• To ascertain the assets of the deceased person.
• To pay testamentary and funeral expenses.
• To collect the debts and assets of the deceased.
• To pay the debts of the deceased.
• To apply for a Probate, whenever necessary.
Applicable laws and Special provisions
Applicable Laws
• The Indian Succession Act, 1925
• Hindu Personal Laws
• Muslim Personal Laws
• The Indian Registration Act, 1908
Special Provisions

Hindus, Sikhs, Jains and Buddhists Will :

• A Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists.
• The executor can also be the witness to the Will.
• A probate is mandatory in the event that a Will is executed in the cities of Mumbai,
Calcutta or Chennai, to the extent that the Will pertains to immovable property in
Mumbai, Calcutta or Chennai.

Parsis and Christians Will:

• A probate is mandatory in the event that a Will is executed in the cities of Mumbai,
Calcutta or Chennai, to the extent that they will pertains to immovable property in
Mumbai, Calcutta or Chennai.
• On the marriage of a Parsi or Christian testator, his/her will stand revoked.

Muslims Will

Muslim Personal Law governs a Muslim testator's power to make a Will, the nature of the
Will, its execution and attestation thereof etc. Under the Muslim Personal Law, a Muslim
testator can make a Will orally or in writing and no form is required for such writing.

7. However, it is preferable to have a written Will. If the Will is in writing it need not be
attested. It may be noted that the provisions of the Indian Succession Act do not generally
apply to a Muslim testator unless specifically stated in the Act.
In India, a person who is a major and of sound mind can make a Will and he can dispose of
all or any part of his property by Will. However, there are two basic restrictions on the
power of a Muslim testator to make a Will,
• A Muslim can bequeath only one-third of his property by Will.
• The heirs of a Muslim testator may consent to bequest in excess of one-third of the
testator's assets.
A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also
become void if a Muslim testator, after making the Will, becomes unsound of mind and
continues to be so till his death. Similarly, a bequest which is contingent, or conditional or
in the future or is alternative to another, pre-existing one, would be void. If an executor is
appointed by a Muslim testator, the powers and duties of the executor will be in accordance
with the provisions of the Indian Succession Act which have been discussed elsewhere. No
Need to mention here that Wills are always effective after death, never in the life time of
the testator.

Section 63 of the Indian Succession Act, 1925 provides that a Will is liable to be
Revoked or altered by the maker of it at any time when he is competent to dispose of his
property by Will, Therefore, the essential characteristic of a Will is its revocability.
Privileged and Unprivileged Wills; Wills executed according to the provisions of section 63
of the Indian Succession Act are called Unprivileged Wills and Wills executed under
section 66 of the Act, by a soldier employed in an expedition or engaged in actual warfare,
or by an airman so employed or engaged, or by mariner being at sea, are called Privileged
Wills. It is provided
in the Act that such a Will may be written wholly by the testator with his own hands and,
in such a case, it need not be signed or attested; or it may be written wholly or in part by
another person, in which case, it may be signed by the testator but need not be attested. If,
however, an instrument purporting to be a Will is written wholly or in part by another
person and is not signed by the testator, it shall be deemed to be his Will, if it is shown that
it was written by the
Testator’s directions or was recognized by him as him Will. If, on the face of it, the
instrument appears to be incomplete, it shall nevertheless, be demand to be the Will of ht
testator, provided the fact that it was not completed, can be attributed to some cause other
than the abandonment of the testamentary intentions expressed in the instrument. Further,
if such a soldier, airman or mariner has written instructions for the preparation of his Will,
but has not
Died before it could be prepared and executed, the instructions shall be deemed to be his
Will;
and if such a person has, in the presence of two witnesses, given verbal instructions for the
preparation of his Will, and such instructions have been reduced to writing in his lifetime,
but he has died before the Will could be prepared and executed, then such instructions are
to be considered to constitute his Will, although they may not have been reduced into
writing in his

8. Presence, nor read over to him. It is also provided that such a soldier, airman or mariner
may make a Will by word of mouth by declaring his intention before two witnesses present
at the same time, but such a Will shall become null at the expiration of one month after the
testator, being still alive, has ceased to be entitled to make a privileged Will.

An unprivileged Will like Codicil can be revoked by the testator only by another Will or by
some writing declaring an intention to revoke the same and 3executed in the manner in
which an unprivileged Will can be executed under the Act or by burning, tearing or
destroying of the same by the testator or by some other person in his presence and by his
directions with the intention of revoking the same. Mere loss of a Will does not operate as a
revocation but where a Will is destroyed by the testator or with his privacy or approbation,
it is to be deemed to have been revoked.
No obliteration, interlineations or other alternation made in any unprivileged Will after the
execution thereof, can have any effect except so far as the words or meaning of the Will
have been thereby rendered illegible or undiscernibly, unless such alteration has been
executed in the same manner as is required for the execution of the Will; but a Will, as so
altered, shall be deemed to be duly executed if the signature of the testator and the
subscription of ht witnesses
is made in the margin or some other part of the Will opposite or near to such alternation,
or at the foot or end or opposite to a memorandum referring to such alteration, and written
at the and or some other part of the Will.

A privileged Will or Codicil may be revoked by the testator by an unprivileged Will or
codicil, or buy any act expressing an intention to revoke it and accompanied by such
formalities as would be sufficient to give validity to a privileged Will, or by the burning,
tearing or otherwise destroying the same by the testator or by some person in his presence
and by his direction with the intention of revoking the same. In such cases, it is not
necessary that the testator should, at the it time of doing the act which has the effect of
revocation of the Will or Codicil,be in a situation which entitles him to make a privileged
Will.

Every Will is revoked by the marriage of the maker, except a Will made in exercise of a
power of appointment, when the property over which the power of appointment is
exercised, would not, in default of such appointment, pass to his or her executor or
administrator, or to the person entitled in case of intestacy.
This rule as to revocation of a Will by marriage, does not, however, apply to Wills and
codicils executed by Hindus, Buddhists, Sikhs or Jains.

An unprivileged Will which has once been validly revoked cannot be received otherwise
than by the re – execution thereon with the prescribed formalities, or by a codicil executed
with such formalities and showing an intention to revive the same. When a Will or a codicil,
which has been partly revoked and afterwards wholly revoked, such revival cannot extend
to so much thereof as has been revoked before the revocation of the whole thereof, unless
and intention to the contrary is shown by the Will or codicil.
It has already been stated that in the case of Hindus, Buddhists, Sikhs and Jains a Will
could validly be made orally and no formalities for the execution of a Will are required.

9. This rule, however, did not apply to Wills made by Hindu, Buddhists, Sikhs or Jains, on or
after the 1 st of September, 1870, within the territories which were subject to the Provincial
Government of Bengal or in the local limits of the ordinary civil jurisdiction of the High
Courts of Judicature at Madras and Bombay, and also, to all such Wills and codicils made
outside those territories
or limits so far as they related to immovable property situated within these territoes or
limits.

The execution of such Wills was previously regulated by the Hindu Wills Act (XXI of
1870).
Except in the cases mentioned in that Act, oral Wills could be made by person’s professing
the Hindu, Buddhist, and Sikh and Jain religions. A question, however, arises whether the
Indian Succession Act, 1925 has the effect of depriving such persons of the privilege of
making oral Wills, or whether the provisions of section 63 of the Act do not merely provide
for the formalities which must be observed, if any of such persons chooses to ‘execute’ a
Will, i.e., chooses to reduce his testamentary dispositions to writing. It will be observed that
section 63 of the Act provides for the manner of ‘execution’ of unprivileged Wills, it does
not deal with the question of the ‘making’ of such Wills.

That the Act seems to make a distinction between the ‘execution’ and the ‘making’ of Wills,
Will appear from a comparison of the phraseology of sections 63 and 66 of the Indian
Succession Act, 1925. While section 63 refers to the ‘execution’ of unprivileged Wills,
section 63 refers to the ‘execution’ of unprivileged Wills; section 66 prescribes the ‘mode of
making’ and rules for executing Privileged Wills’. A distinction, therefore, seems to be
contemplate
between the ‘execution’ and the ‘making’ of a Will. The former expression apparently
applies to cases where the Will is to be reduced to writing, and the expression ‘making of a
Will’ includes the execution of a Will and also an oral declaration by the testator of his
testamentary disposition of his estate, if such declaration legally amounts to a Will. The
matter is a debatable one, and no definite opinion, therefore, need be expressed on it at this
stage.


Conditional or Contingent Wills A Will may be expressed to take effect only in the event of
the happening of some contingency or condition, and if the contingency does not happen or
the condition fails, the Will is not be legally enforceable. Accordingly, where A executes a
Will to be operative for a particular year, i.e. If he dies within that year. Lives for more
years, after those years. Since A does not express an intention that the Will be subsisting
even intestate. A
Conditional Will is invalid if the condition imposed is invalid or contrary to law.
Joint Wills A Joint Will is a testamentary instrument whereby two or more persons agree
to make a conjoint Will. Where a Will is joint and is intended to take effect after the death
of both, it will not be enforceable during the life– time of either. Joint Wills are revocable
at anytime by either of the testators during their joint lives, or aster the death of one, by the
survivor.

10. A Will executed by two or more testators as a single document duly executed by each
testator disposing of his separate properties or his joint properties is not a single Will. It
operates on the death of each and is in effect for two or more Wills. On the death of each
testator, the legatee would become entitled to the properties of the testator who dies.

Mutual Wills A Will is mutual when two testators confer upon each other reciprocal
benefits by either of them constituting the other his legatee. But when the legatees are
distinct from the testators, there can be no position for Mutual Wills.

Duplicate Wills A testator, for the sake of safety, may make a Will in duplicate, one to be
kept by him and the other to be deposited in the safe custody with a bank or executor or
trustee. If the testator mutilates or destroys the one which is in his custody it is revocation
of both.


Concurrent wills generally, a man should leave only one Will at the time of his death.
However, for the sake of convenience a testator may dispose of some properties in one
country by one Will and the other properties in another country by a separate will.



Sham Wills If a document is deliberately executed with all due formalities purporting to be
a Will, it will still be nullity if it can be shown that the testator did not intend it to have nay
testamentary operation, but was to have only some collaterally object. One thing must be
born
e in mind that the intention to make the Will is essential to the validity of a Will.
Holograph wills such Wills are written entirely in the handwriting of the testator.


#Note Prepared by#
A.SHANAVAS
REVENUE DIVISIONAL OFFICE TRIVANDRUM