What is Will And Probate / How to Draft Will

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What is the meaning of probate of will?

A Will is a lawful declaration of an individual on a paper regarding the distribution of his properties after his demise. It is an independent document that takes effect upon the demise of an individual allowing the beneficiaries to distribute the wealth, property and assets. What is Will And Probate I How to Draft Will

There is no prescribed form of Will. As it can hand written or type on any document. And stamp paper is not necessary for making a will. A Will may revoke or alter by the maker of the will at any point of time before his/ her death. Probate is necessary for registered Will. And it is always advisable to have probate of will for future complication. Avoiding Probate is not possible. 

It is not compulsory to get Will registered before Sub Registrar office. A registered Will has some weightage in evidence. Otherwise there is no difference between registered will and non-registered will.

Types of Will

There are two types of wills i.e. Privileged and Unprivileged will be provided in the Indian Succession Act (What is Will And Probate I How to Draft Will)

1) When soldiers who employ in an expedition or war-like situation or an airman or mariner make the will are called Privileged Will. There are no much legal formalities for Privileged Wills. This kind of will can prepare in writing or orally and there is no any legal formalities. 

2) And all other kinds of Wills are Unprivileged Wills. Here we shall discuss unprivileged wills.

Points need to consider while drafting Will

There is no specific format of Will has prescribed. There are samples/templates provided in some drafting and conveyance books.  

Following are some important points which needs to consider while making a will.

1. Testator has to declare that he is making this will without any pressure and with his knowledge and senses. The testator has to mention his name, address and age at the time of writing the Will. 

2. The testator must states that he/she is of sound mind and free of any force while preparing the will.

3. It is important to add the name, age, address and relation to the testator of beneficiaries in the will. The beneficiaries are those persons whom the assets are divided between them. 

4. It is also necessary to appoint an executor who shall ensure that the Will is carried out according to the directions provided by the testator. The name, age, address and relation to the testator with the executor should be specified as well. 

5. The testator has to specify the list all the details of the properties and assets. And which ones that shall be covered under the will. 

6. It is necessary to specify the share of each beneficiary on the property. If the asset is to be given to a minor, then a guardian for the minor should also be listed in the will.  

What is Will And Probate / How to Draft Will

Attestation 

7. The testator shall sign the will in the presence of at least 2 witnesses. And at the end, it is necessary to mention the full name and address of attesting witness in the Will. It is also necessary to affix the photograph of the maker of the will and photographs of witnesses. The testator and the witnesses have to affix their passport size photograph and they also put their thumb impression in the will. After that the date and place also must put at the bottom of the will.

9. It is necessary to make sure that the testator and the witnesses sign all the pages of the will. While choosing witnesses, it is important to see that witnessed shall be friends, neighbors, or colleagues and they shall not be the direct beneficiaries in the Will. However, they have only witnessed that maker of the will have signed the will in their presence.

19. If the testator is more than 60 years old. He has to obtain a medical certificate from the doctor stating that the testator is mentally and physically fit while making a Will.

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Grounds for challenging the Will and probate claims

However, if a person has an interest in the Will. He can challenge in the court of law. And if a person gets successful and win the case in the court, then in such cases the Will can declare as voided in its entirety or part. 

1. If at the time of making a Will, two witnesses were not present. Witnesses signature were taken at later on. This is also one of the ground to challenge the validity of the Will.

2. Coercion, fraud or undue influence are one of the grounds on which will can challenge. A person who challenges the Will has to establish that the Will was not prepared with a clear intention and the testator was under pressure.

3. If there are presence of some doubts in the will which give a reasonable understanding that there was some doubtful.

4. If the testator was not incapacity or testator’s intention was not clear to make the Will. 

5. The testator was not aware of signing the Will, this shall be the ground for challenging the validity of the Will.

Revocation process:

1. If the will cannot be found after the death of the testator and was not seen in his possession, then it shall be presumed that the will has destroyed.

2. When the testator executes a subsequent will in that case his previous will automatically get revoked.

3. If the testator made a declaration in writing to revoke the Will, then it can revoke the previous Will and uphold the new will. 

4. If the existing Will has destroyed by tearing, burning or by other means by the testator. 

5. If the person has prepared a privileged Will and at later stage he has made unprivileged will. Then unprivileged will overrule the prior privileged Will.

6. When the testator gets married after the will then the old will shall deemed as revoke. This is a significant principle under the Indian Succession Act and it has protected the interests of all the relevant parties. (What is Will And Probate I How to Draft Will).

What is Will And Probate I How to Draft Will

What is Probate and purpose of Probate? 

As per The Indian Succession Act, 1925 probate is official proof of a will. A probate issued to the executor who is an authorized person to execute the will. Meaning of probate under Indian Succession Act, 1925, is a Will is a copy, which has certified under the seal of a court of appropriate jurisdiction with a grant of administration of the estate of the testator. Probate is issued to the executors of the will which authorize them with a seal of approval from the court. When there are no executors of the will, in that case, court issue a simple letter of administration.

When an petition for probate has made and if the Will proved, the court keeps the original copy and issue probate to the executor.

The importance of a ‘Probate Caveat’

A probate caveat is presented in the court to stop the proposed executors or administrator from getting permission to administer the estate of deceased person. The object of a probate caveat is to challenge the Will itself. Where a person believes that the Will has forged or has not written by the deceased person, in such case Probate Caveat may file in the court.

It is important to file within a short period after a deceased person’s death and before probate petition allowed by the court.  (What is Will And Probate I How to Draft Will).

Procedure for obtaining the Probate of a Will 

The High Court issues the Probate with the court seal and a copy of the Will attached. For obtaining a Probate, the executor of the Will has to file the petition in the High Court. He needs to pay court fees depending upon the value of property. Thereafter, the court generally inquire with the Petitioner to establish the proof of death of the testator, whether the Will has validly executed by the testator and whether it has the last Will of the deceased. 

After admitting the petition for Probate, the court issues a notice to the next of kin of the deceased to file objections, if any, to the granting of the probate and the court also directs the Petitioner to publish the citation on board to notify the general public. If the next kin of the deceased files their no objection to the grant of Probate to the Petitioner, the court allows the petition of the Petitioner and grants the Probate. However, if the next of kin of the deceased files any objections, the Probate Petition becomes the testamentary suit. And thereafter parties has to lead their evidence in the matter.

 

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