ASSIGNMENT 30:

WILL
NAME: MOHD OVES AHMAD
ROLL NO: 34
CLASS: BA LLB(H)/ SEM VIII REGULAR
SUBJECT: CLINICAL II
SUBMITTED TO: ADV RAJESH SHARDA
INTRODUCTION

A will is a legal declaration a person makes about the way they want their property managed
or distributed after their death. Although a will is a legal document, there isn’t any prescribed
form it must take. For instance, you don’t need to write a will on stamp paper and it can be
either typed or handwritten. However, a handwritten will is preferred as it is more difficult to
refute. According to the Indian Succession Act of 1925, anyone who is of sound mind and
who is not a minor can make a will.

Essential Elements of a Will

While a will need not be in a prescribed form, it’s good practice to follow a certain pattern so
that everything necessary by law is included, making your will simpler, more solid and
difficult to contest. Your will should have these basic things:

Declaration: You should start your will by declaring that you are of sound mind and stating
who you would like to be executor of your will. If this isn’t your first will, you should make a
statement revoking all previous wills and codicils.

List of your Assets: Next you should list out all your assets. This should include any
property you own, the money you have in your savings accounts, fixed deposits and mutual
funds. Compiling this list can be time consuming and tedious. It’s best to go over it a few
times to make sure you haven’t left anything out.

Divide your Assets: List out clearly who is to receive which assets. Going item-wise may
remove any ambiguity. If you wish to give your assets to a minor, don’t forget to appoint a
custodian of the assets. It’s important to select someone you trust as a custodian.

Sign the will and involve witnesses: You have to sign your will in the presence of two
witnesses. Your witnesses will then have to sign to certify that the will was signed in their
presence. It is here that the will should be dated, and you should specify the full names and
addresses of your witnesses. Remember: your witnesses don’t need to read your will. They
just need to attest to the fact that you’ve signed it in their presence.
Initial each page: After this, the date and place must also be written at the bottom of the will.
Every page of the will needs to be signed by you and your witnesses. Any correction made on
the will must also be countersigned by you and the witnesses.

Storing the will: Make sure you store your will in a safe place. Copies, if made, should be
stored separately from the original will.

Common Mistakes while Writing a Will

Avoid using complicated or technical legal terms: Many people like using legal terms while
drafting such documents. This can get very confusing and often the layman is left puzzled by
what is written. So, to avoid any confusion, make sure the language you use to draft the will
is simple and precise.

Try to avoid allotting tenancy rights: People, especially those who have been tenants for
many generations, often pass on their tenancy, though it isn’t legal to do so. This is a
common mistake and there are many court cases regarding this issue. You cannot state in
your will that a relative should become the tenant of the property, since you do not have any
right to the property.

Forms and Formalities:

Form of a Will:

There is no prescribed form of a Will. In order for it to be effective, it needs to be properly

signed and attested. The Will must be initialed by the testator at the end of every page and
next to any correction and alteration.

Language of a Will: A Will can be written in any language and no technical words need to
be used in a Will, however the words used should be clear and unambiguous so that the
intention of the testator is reflected in his Will.

Stamp Duty: No stamp duty is required to be paid for executing a Will or a codicil. A Will,
therefore, need not be made on stamp paper.

Attestation: A Will must be attested by two witnesses who must witness the testator
executing the Will. The witnesses should sign in the presence of each other and in the
presence of the testator.

Under Parsi and Christian law, a witness cannot be an executor or legatee. However,
according to Hindu Law, a witness can be a legatee. A Muslim is not required to have his
Will attested if it is in writing.

Registration: The registration of a document provides evidence that the proper parties had
appeared before the registering officers and the latter had attested the same after ascertaining
their identity. In India, the registration of Wills is not compulsory even if it relates to
immoveable property. The non-registration of a Will does not lead to any inference against
the genuineness of a Will. In other words, registration therefore does not give any special
sanctity to the Will though registration of the Will by the testator himself evidences the
genuineness of the Will.

Whether registered or not, a Will must be proved as duly and validly executed, as required by
the Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the
Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen.

Procedure for Registration: A Will is to be registered with the registrar/sub-registrar with a

nominal registration fee. The testator must be personally present at the registrar's office along
with witnesses.

Revocation and Amendment: A Will can be revoked, changed or altered by the testator at
any time when he is competent to dispose of his property. A person can revoke, change or
alter his Will by executing a new Will, revoking the earlier Will, registering the new Will (if
the old Will is registered), destroying the old Will or by making a codicil. On the marriage of
a Parsi or a Christian testator, his/her Will stands revoked, this however does not apply to
Hindus, Sikhs, Jains and Buddhists.

Probate and Letters of Administration

Probate: A probate means a copy of the Will, certified under the seal of a competent Court
with a grant of administration of the estate to the executor of the testator. It is the official
evidence of an executor's authority. A probate is mandatory when the Will is executed by a
Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to
immovable property situated in Mumbai, Calcutta or Chennai.

Effect of grant of probates : A probate granted by a competent court is conclusive evidence

of the validity of a Will until it is revoked and no evidence can be admitted to impeach it
except in a proceeding to revoke the probate. However, it only establishes the legal character
of the executor and in no way decides the title or even the existence of the property devised.
The grant of the probate decides only the genuineness of the Will and the executors right to
represent the estate.

 The grant of a probate is conclusive evidence of the testamentary capacity of the

person who made the Will.
 A probate is conclusive as to the genuineness of the Will and appointment of the
executors.
 Once a probate is granted, no suit will lie for a declaration that the testator was of
unsound mind.
 Probate is conclusive as to the representative title of the executor.

To whom probates can be granted : Under the Indian Succession Act, 1925, a probate can
be granted only to an executor appointed under a Will. However, it cannot be granted to a
minor, a person of unsound mind, or to association of individuals, unless it is a company that
satisfies the conditions stipulated by the government.

When a probate can be granted : A probate cannot be granted until the expiration of seven
days from the date of the testator's death.

Letters of Administration: In the event a person dies intestate or a Will does not name any
executor, an application can be filed in the courts of law for grant of probate.

To whom can a LoA be granted : Under the Indian Succession Act, 1925, a LoA can be
granted to any person entitled to the whole or any part of the estate of the deceased person.
However, it cannot be granted to a minor, a person of unsound mind, or to association of
individuals, unless it is a company that satisfies the conditions stipulated by the government.

When can a LOA be granted : A LoA cannot be granted till the expiration of fourteen days
from the date of the testator's death.

Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e.
in conformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the
person making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be
intended to take effect after his death.

Revocability : The essence of every Will is that it is revocable during the lifetime of the
testator. People capable of making Wills are, Every person who is:

 not a minor
 of sound mind
 free from fraud, coercion or undue influence
 WILL

I, Shri. Chandramani Kumar, son of Shri. Sanjay Kumar hereby revoke all my wills and
codicils, if any, and make this my last will on the 15 th day of January 2019 in the city of
Lucknow.

WHEREAS my wife Mrs. Pranjal Kumar died on 20th of December 2018 leaving behind
three daughters who have been married and are living with their respective husbands;

AND WHEREAS I desire to make provision for my brother, a son of my late elder brother
and other relations hereinafter mentioned.

NOW I hereby devise my property as follows:

1. I, devise my house in which I am living situate on D-2, Nisha Market Road 2 bearing
Municipal No. 3425 in the city of Lucknow to my mother for her life.

2. I, devise my three shops situate in Hazratganj bearing Municipal Nos. 892, 823, 973
respectively in the city of Lucknow to Shri Vinay Kumar, son of my late elder brother Shri
Surendra Kumar, for his life and thereafter for the life of his wife in case she survives her
husband and thereafter to their issue in equal shares as absolute owners thereof.

3. I, devise my land in the city of Lucknow bearing Khasra No. 34483 to my eldest daughter
who is directed to make a present of about one tenth of the produce thereof to my mother
during her life- time and one tenth of the produce to my second daughter, Shrimati, Vaishnavi
Devi and one tenth of the produce to my third daughter, Shrimati Kritika Sunder. The
expenses of delivering the said produce to my mother shall be borne by my first daughter, to
whom the garden has been devised, but the expenses of delivering the aforesaid presents to
my other daughters shall be borne by the said daughters respectively and they may take
delivery of the same on their own respective cost from my third daughter at the said land
itself. In case any dispute should arise between my said daughters or my mother about the
non delivery or the quantity so delivered. Or the quality of the produce delivered, the same
shall be final if she is living even if she may be one of the disputants, and in case of her
demise the said dispute may be referred for settlement to my brother Mr. Vaibhav Kumar.
4. I, bequeath to my second daughter, Shrimati Surbhi Singh the shares of the value of Rs.
70,00,000 (rupees seventy lakh only) Now standing in my name in the register of The Ramen
Company.

In case the said company should hereafter fail or entitled to recover the equivalent of the said
sum of Rs. 70,00,000 after taking into account the value of the shares aforementioned at the
time of my devise from my other properties.

5. I, bequeath to my youngest daughter, Shrimati Silky Kumar, the business now running
under the name and style of The Tree Co. Ltd. by me.

6 I, bequeath to my brother, Mr. Bhupendra Kumar, a sum of Rs. 50,00,000 (rupees fifty lakh
only) out of which any sum that may be accruing due to me from him under any loan
transaction shall be first adjusted.

7. I bequeath to my sister, Shrimati Aishwarya Roy, a sum or Rs. 60,00,000 (Rupees sisty
lakh only) out of my estate.

8. I bequeath the residue of my estate, if any, to Samajwadi Youth Fund.

9. I appoint the President of the District Bar Association of Lucknow as my executor who
shall be entitled to charge a remuneration of Rs. 50,000 (rupees fifty thousand only) per
month besides the usual expenses for administering the estate.

IN WITNESSES WHEREOF, I, the said Shri. Chandramani Kumar, have executed this will
in the presence of the witnesses hereunder who have attested the same in my presence.

WITNESSES:

1. Mr. Mohd Oves

2. Mr. Vaibhav Singh