TESTAMENTARY AND INTESTATE SUCCESSION-I

Steve Jobs famously stated “Death is the destination we all share, and no one has ever escaped it”. The ongoing crisis i.e. COVID-19 is a clear and present danger. Thinking about your death and estate planning is not a joke for afternoon fun but it is critical that you can’t ignore it either.

Most of the people might be thinking that What will be happen with my property and estate after my death? Who will get my property and how much of it shares? Will my children quarrel with each other for my estate? I want to devolve my property in so and so manner…. Are you sheep-witted with some of these questions? Then here is something for you to start your succession planning. There are two ways in which your estate can be devolved- A) Testamentary Succession-according to the ‘Will’ of the deceased B) Intestate Succession- according to the respective laws of succession, when no Will is made by the deceased.

In the present article we will see how one can dispose off his property by approaching the first way i.e. testamentary succession. You may be wondering what a testamentary for an estate is. In Bollywood movies we all have seen one scene where after the death of a person an advocate came with red folder in his hand and informed to all the family members that the deceased have made a “Will”. Do you really aware about what is a Will?

Will is the legal declaration of a person’s intention, which he/she wishes to be performed after his/her death and once the will is made by the testator/testatrix, it can only be revoked during his/her lifetime. A Will becomes enforceable only after the death of the testator. It gives no rights to the legatee (the person who inherits) until the death of the testator. In the Will one can mention the name of executor; Acting as an executor of an estate means the person whose name is mentioned in the ‘Will’ will be in charge of paying bills and debts, inventorying assets and making distributions to beneficiaries according to the will. But to do all of this executor have to be given the legal authority to act by a court. Beneficiary person means person who bequeathed the property under a Will. It is not necessary that Will has to be bequeathed only on legal heirs. One can bequeathed his estate whether movable or immovable on any person, trust of his/her choice. A testator can change his Will, at any time, in any manner, during his lifetime. The law requires that person of sound mind, and not a minor i.e. above 18 years of age, and must be have some property of course whether movable or immovable can make a Will. If a person is of unsound mind or under influence of intoxication at the time of making a Will, the Will is not enforceable. A Will, obtained by force, coercion, undue influence is a void will and it has no value in the eyes of law. A testator can make number of Wills during his lifetime. However, only the last Will made before his death is enforceable. Again, a Will has to be made in front of witnesses and it should be signed by two or more witnesses. A Will should be executed by the testator, by signing or affixing his thumb impression on it. Further, by means of a Will, one can appoint in writing in a Will a testamentary guardian for his infant children. Many disputes can be resolved at the very outset if there is a clear disposition of one’s property in a Will.

Question is not get over as once you made Will, Indian Succession Act inter alia states that the right of a legatee to property bequeathed under a will can’t be established in a court unless a court of competent jurisdiction in India has granted Probate of the will under which the right is claimed or Letters of Administration with will (L.A. with Will) annexed thereto have been obtained. Probate shall only be granted to an executor of a Will whose name is mentioned in the Will as executor and L.A. with Will shall only be granted to a legal heir of the deceased person or the beneficiary i.e. legatee whose name is there in the Will. If sole surviving executor passes away prior to filing the probate petition, legal heirs or beneficiaries may apply for L.A. with Will annexed to it. To obtain a Probate or L.A. with Will, executor or beneficiary will have to file a Probate or Letters of Administration petition in a court of competent jurisdiction respectively. The court will ask the other legal heirs of the deceased if they have any objections to the Will. It takes about 6–8 months to obtain a Probate or Letters of Administration if the petition for the same is not contested by any person. It is to be noted that if the probate or L.A. with Will petition contested by any of the legal heir of deceased (which can be done by filing a caveat in petition) then petition will be converted into a testamentary suit and the genuineness of the will, then be adjudicated upon.

Probate or Letters of Administration with Will operates as a ‘right in rem’. If someone has concerns about someone’s will, it is very important that person should seek legal advice as soon as possible after the testator/testatrix dies, so as to make sure that person starts the proceedings within time and on the correct basis. If one has an interest in the will, he/she can challenge it, and if he/she is successful in convincing the court, then the Will can be voided in its entirely or in part. One can file challenge Will through caveat. Caveat is a document that is filed in court to prevent the proposed executors or administrators or legal heir or beneficiary of a deceased person’s estate from getting grant to administer the estate assets or enjoy his/her share. A caveat is used to challenge a will itself.

A challenger of the Will can challenge the Will on following grounds-

· On the basis of senility, dementia, insanity, or that the testator was under the influence of a substance, or in some other way lacked the mental capacity to make a Will. Basically, if the testator is not in mental capacity to understand the consequences of bequests so made under the Will at the time of its creation.

· The Will can also be challenged on the grounds of fraud, forgery, or undue influence i.e. lack of testator’s free consent or without adequate attention.

The mere fact that the Will has been registered which is not mandatory under the law cannot, by itself, be sufficient to dispel all the suspicions regarding it and court may scrutinize the Will even if it is registered. A new Will made, even if unregistered, if valid, will trump the registered will.

Though seeking grant of Probate, Letters of Administration with Will by the petitioner is a little bit time consuming task, one need proper legal knowledge and professional advice on the basis of which these inevitable tasks can easily and fruitfully be completed.