Friday, 20 November 2015

WILL OR TESTAMENTARY SUCCESSION


Succession to the self acquired assets of the deceased as per his declaration is Testamentary succession. The declaration of the deceased is called WILL, and the person (deceased) is called Testator. The Indian succession Act 1925 deals with the testamentary succession and is applicable to wills made after 1st January 1866 but not to wills made by Mohammadans.

Can a will be revoked ?
The Will operates only after the death of the Testator, but not from the date of execution. It can be revoked at any time by the testator during his life time. Though the word irrevocable is used in the wills, it does not prohibit the will being revoked.

What are the kinds of wills ?
There are two kinds of wills, privileged will and unprivileged will.  Privileged will is made by soldier, airmen, employed in expedition, or actual warfare and a mariner in sea.  All other wills are called unprivileged wills.

Only a major, the person who has completed the age of eighteen may make a will, is there any exception ?
The general rule is that the testator should not be a minor. But in case of father, irrespective of his age, may appoint a guardian for his minor children, who is called Testamentary guardian.

Whether the signature of the testator and attestation is necessary for unprivileged wills ?
Signature or mark of the testator is necessary for unprivileged will. In certain cases, it may be signed by some other person in the presence of testator and under testator's direction.  But it is always advisabe to have will signed by the testator to avoid any disputes later. Every unprivileged will should be attested by atleast two witnesses, who have seen the testator or his agent sign the will. Each witness must sign the will in the presence of the testator. But it is not necessary that each witness sign at the presence of other witness.

No stamp duty is payable on will, hence need not be written on stamp papers.

Can a attesting witness be a beneficiary of the will ?
As per the Indian succession act, if the testator makes any gift to the attesting witness, wife or husband of the attesting witness, such gift becomes void, the will be deemed valid. But this clause does not apply to Hindu, Budhists, Sikhs, Jains etc., so a legatee under the will of a Hindu will not lose his legacy only because he has attested the will.

What is probate ?
Copy of the will duly, certified under the seal of a competent Court, with grant of administration to the estate of the deceased is called probate.

What is a duplicate will ?
A duplicate will is one of which two or more copies are made. If such a copy is signed by the testator, it can operate as the original will. Here a will is executed in duplicate, one of which the testator retains, while the other is deposited in the custody of another, then the destruction of the duplicate, which was in the testator's possession, revokes the will.

Who is capable of making a will ?
Every person (a) who is of sound mind and (b) who is not a minor, can dispose of his property by will. A married woman can dispose of by will any property which she could alienate by her own act during her life-time. Persons who are deaf or dumb or blind can make a will, if they are able to know what they do by it.  A person who is ordinary insane may make a will during an interval during which he is of sound mind. However, no person can make a will while he is in such a state of mind that he does not know what he is doing.

Yes, there is provision for safe custody of will as detailed in Indian Registration Act, 1908.  The testator, that is the person who makes the will or his duly authorized agent may deposit the sealed cover containing the will with any registrar for safe custody.  The cover should be superscribed with the name of the testator or his agent with a statement of the nature of the document. An amount of Rs.1,000/- will be charged as fee.

The deposited cover may be withdrawn by the testator or his agent on payment of prescribed fee of Rs.200/-.


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