Introduction to Wills and Probate

Introduction to Wills and Probate

By Siva Prasad Bose

Published by Joy Bose at Smashwords

Copyright 2022 Siva Prasad Bose

Distributed by Smashwords

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Contents

Preface

Chapter 1: Some Practical Considerations

Chapter 2: Death – Before and After

Chapter 3: Introduction to Wills

Chapter 4: Making a Will

Chapter 5: Intention of the Testator

Chapter 6: Probate of a Will

Chapter 7: Petition for Probate

Chapter 8: Wills Obtained by Fraud, Coercion and Importunity

Chapter 9: Execution of Unprivileged Wills

Chapter 10: Important Sections in Probate Proceedings

About the author

Other books by Siva Prasad Bose

Preface

Since the publication of the first edition of this work, fundamental changes and a few modifications have been brought about in the second edition. This is intended to ensure a clear understanding of the subject, since this book is meant to be an introductory guide for dealing with wills and probate in India. This book is meant to help all such people who may not have knowledge of the law in the field of wills and probate.

Everyone should have an up to date will that reflects an estate plan adaptable to individual needs and circumstances. The estate plan is a thoughtfully designed arrangement for the distribution of one’s assets in such a way as to achieve maximum realization of the planner’s objectives. Such objectives can include keeping taxes at a minimum, providing financial management for the benefit of the surviving spouse and children, selection of a trusted relative, friend or an advisor as executor or guardian, and so on. An estate plan can be simple and inexpensive to draw up. However, whether it is part of an estate plan or not, the will is ordinarily a written document that takes effect on the death of the testator – the legal term for a person making out a will. The will’s purpose is to distribute one’s worldly assets to those whom the testator desires or wills to have them.

This text has been prepared in response to a perceived need for a concise and comprehensive text that focuses on wills and probate, which is essential to the education of students and persons dealing with the topics mentioned.

An objective of this book is to present the law and the court system as they actually function. All relevant cases have been carefully selected and presented. The author has nevertheless maintained the essence of each case without resorting to overly short case briefs, which often fail to provide the readers with an accurate sense of the courts in action and of the reasoning process involved in arriving at a decision.

Note

At various places in the book references to Indian court judgements have been made. For example:

AIR 1962 SC 567 refers to a Supreme Court judgement No. 567 in the year 1962.

Unless mentioned otherwise, S-227 and all such references preceded with S- refer to the Indian Succession Act, 1925.

Latin terms are italicized wherever they occur.

Important Law Books/ References Consulted

(i)P.L. Parukh - Indian Succession Act, 1925 11th Edition by Justice K. Kannan.

(ii)Indian Succession Act - 4th Edition by Sanjiba Rao

(iii)Hindu law. by Sir Dinshaw Fardunji Mulla - 21st edition.

(iv)Fundamental of Business law – The Dryden Press — by Rate Hawell / John R.Allison / N.T. Henley.

(v)Mogha’s Indian Conveyancer — 12th Edition.

(vi)The Daily Telegraph - Everyday law by Aviva Golden.

(vii)Webster’s Comprehensive Dictionary

(viii)Mulla T.P. Act, 1882, the Indian Evidence Act, 1872, the Court Fees Act 1870

(ix)Law of Wills by Indian Social Institute (Legal Education Personal Laws – 9): In this booklet the salient features of the law of wills as contained in the Indian succession act are summarized in a question answer form. It is advisable to keep handy as and when provisions of the Indian succession act related to wills/ probate are being dealt with.

Chapter 1: Some Practical Considerations

In this chapter, we consider some practical considerations for a person considering to make a will or estate plan before their death.

1.1 What is a will and why should one make a will

Will is a legal document which declares the intention of a person with respect to the property which he desires to be carried into effect after his death.

A will is just one component of one’s overall estate plan , which documents how one’s assets should be managed so as to realize one’s wishes, including keeping taxes to a minimum, giving instructions how to take care or provide for one’s surviving family members, selection of a trusted person to become one’s executor of the will and so on.

If someone does not make a will and dies (called ‘intestate’) their property will be divided as per the laws of intestacy. The law of intestacy determines how one’s property, assets and belongings, will be distributed, to whom and in what proportion. Under intestacy laws, property left by a deceased person pass to their survivors according to rules fixed by the deceased’s state of residence. The intestacy laws generally benefit one’s blood relatives in order of proximity, but if one desired to leave anything to charities, distant relatives or close friends, they would get nothing. So if a person does not make a will, they will not be in control over how their property is to be distributed.

Other reasons to make a will include the following:

•To revoke any previous wills

•To identify any specific assets owned by one

•To appoint guardians or set up trusts for one’s minor children

•To nominate executors and trustees to manage one’s assets

•To make gifts to individuals and charities and to provide for pets and servants

•To prevent family disputes about who gets what part of one's property

•To plan the distribution of one’s estate so as to minimize taxes (such as inheritance tax and capital gains tax)

•To leave instructions about one’s funeral rites, cremation or burial or how to dispose of one’s body

•To donate one’s organs, or one’s entire body, for medical research or for organ transplants.

1.2 Intestate succession and testamentary succession

The Indian Succession Act 1925 is an act to consolidate the law applicable to intestate (dying without a will) and testamentary succession (succession where a will is present). The purpose of such a consolidating statute is to present the whole body of statutory law on a subject in a complete form, repealing the former statute.

The ordinary meaning of the word succession is a transmission by law or by the will of the man to one or more persons of the property and transmission rights and obligations of a deceased person. The federal court gave its opinion on a reference in the matter of the powers of the federal legislature to provide for the levy