WILL: Shrouded in Mystery

Judgement on will

There have been numerous cases where the Will of a person has been questioned by the courts. It is not uncommon for the High Court to find it suspicious and dispel the wishes of the testator only to be reversed by the Apex Court. A very similar situation took place in Mahesh Kumar (D) By Lrs. vs Vinod Kumar & Ors on 13 March, 2012. Honorable Justice G.S. Singhvi reversed the judgment given by a single judge in Madhya Pradesh High Court.

Although the apex court did agree with High Court that the will was shrouded in mystery however the Apex Court’s interpretation of will deemed it genuine and gave validity to its execution.  To quote Justice Sanghvi, “The fact that the appellant was present at the time of execution of Will dated 10.2.1992 and that the testator did not give anything to respondent Nos. 1 and 2 from his share in the joint family property are not decisive of the issue relating to genuineness or validity of the Will. The evidence produced by the parties unmistakably show that respondent No. 2 had separated from the family in 1965 after taking his share and respondent No. 1 also got his share in the 2nd partition which took place in 1985.”

The important part to notice here is that while taking into consideration if a will seems to be suspicious, then it is up to the appellate to dispel any suspicion.

The High Court strongly felt that the appellate failed to dispel the suspicion they had and the will was suspicious as even the Apex Court had to go into great depth before over-ruling the judgment.

In and all the most important part of this judgment is the fact that if a reasonable doubt or suspicion has been raised by the court, the burden of proof shall be with the executor of will (who is also the beneficiary).

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Where there’s a Will, there will be more to learn!

will

So while we are still on a Willful phase, let’s talk about the nuances of the formalities and language of the document itself. Now that you know the importance of the will in protecting your property in India from any kind of property disputes that might occur if you die intestate. There are certain terms that you would be better off knowing if you were thinking of making a Will for your assets in India. An executor of a Will, for example, is a person appointed ordinarily by the testator by his will or codicil to administer the testator’s property and to carry into effect the provision of the will. Another very frequently used term is a Codicil – which is an instrument made about a Will explaining, altering or adding to its dispositions. It is a part of the Will. If the Testator wants to change the names of the Executors by adding some other names, this is done by making a Codicil in addition to the Will, as long as there are no other changes required to be made in the main text of the Will. The Codicil will always be in a written form. It is required to be signed by the Testator and attested by two Witnesses. Another aspect of the Will making procedure is a letter of administration. This is a certificate granted by the competent court to an administrator where there exists a Will, authorizing him to administer the estate of the deceased according to the Will, where the WILL does not name any executor. An application needs to be filed in the court for grant of Letter of Administration for the property as per law, where the deceased has died intestate. Probate is a term that we frequently hear in the context of the Will formulating process. Probate implies that the copy of the will is given to the executor together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved. The Probate is a firm evidence of the validity and due execution of the will and the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the will. The probate is still the only proper evidence of the executor’s appointment. There is often a confusion between a nomination and a will. The nominee merely acts as the trustee. Sometimes, the nominee and the beneficiary of the will can be the same person. It needs to be understood that the provisions of the Will document will always prevail over the nomination. Normally it is better to have the same person as the nominee and the beneficiary of the will so that there are no property disputes in the future.