Hierarchy of Courts In India

Today we can see hierarchy of courts in India.

"It is well known to us that supreme court is highest authority in judiciary in India. Today we focus on hierarchy system of courts in India."

Few Legal Terms

Now we light on important legal terms :

ABANDONMENT (OF A CHILD)

“A parent's failure to provide any financial assistance to or communicate with his or her child over a period of time. When this happens, a court may deem the child abandoned by that parent and order that person's parental rights terminated. Abandonment also describes situations in which a child is physically abandoned -- for example, left on a doorstep, delivered to a hospital or put in a trash can. Physically abandoned children are usually placed in orphanages and made available for adoption.”

A Presumption

A Presumption

INTRODUCTION

A Presumption is an acceptance of a fact as true or existent based upon its strong probability evident from the circumstances. For example, if a man has not been heard from for 7 years by his closest relatives, the court may believe in that the man is dead. This is a presumption. Thus, when the court presumes the existence of a fact because of its strong probability but without a direct or conclusive proof, it is called as presumption. When a court presumes a fact, the party in whose favor the fact is, is relieved of the initial burden of proof. For example, as per Negotiable Instruments Acts, every holder of an instrument is presumed to be a holder for consideration. So if a person A holds a cheque signed by another person B, it is presumed that A has given consideration for the cheque and so A does not have to provide any proof of that consideration. Of course, this presumption only applies at the beginning. The other party is free to provide proof that disproves the presumption. For example, the opposite party can show letters by the person or recent photograph of the person showing that he is still alive.

May Presume and Shall Presume

Provisions of Section 4 of Crpc, in a general sense, correspond to the above classification.

"May  presume" - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. It gives the court a discretionary power to presume the existence of a fact. Which means that the court may regard the fact as proved unless and until it is disproved. All the presumptions given in Section 114 are of this kind, which says that the court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.  For example, the court may presume that a man who is in possession of stolen goods soon after theft, is either the thief of has received the goods knowing them to be stolen, unless he can account for his possession.

"Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. It basically forces the court to presume a fact that is specified by the law unless and until it is disproved. The court cannot ask for any evidence to prove the existence of that fact but it may allow evidence to disprove it.

Section 107 of IPC provides for Abetment Of A Thing that means a person abets the doing of a thing, who Instigates any person to do that thing or Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing or Intentionally aides, by any act or illegal omission, the doing of that thing.”

The word Suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. `Sui’ means `self’ and `cide’ means `killing’, thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under section 309 of IPC.

RELEVANT SECTIONS

Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation- An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

Illustrations:

a) A offers a bribe to B, a public servant, as a reward for showing A some favor in the exercise of B's official functions. B accepts the bribe. A has abetted the offence defined in section 161.

b) A instigates B to give false evidence. B, in consequence of the instigation, commits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B.

c) A and B conspire to poison Z. A in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z B, in pursuance of the conspiracy, administers the poison to Z in A 's absence and thereby causes Z's death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder.

Abetment of suicide of child or insane person

If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or [imprisonment for life], or imprisonment for a term not exceeding ten years, and shall also be liable to fine.

Abetment of suicide

If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

ABETMENT OF SUICIDE BY A MARRIED WOMAN

The Indian Evidence Act section 113A deals with the presumption as to the abetment of suicide by a married woman. Section 113A states that:

When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband and such relative of her husband had subjected her to cruelty, the curt may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by any such relative of her husband.

For the purpose of this section, cruelty shall have same meaning as in section 498A of the Indian Penal Code

The term cruelty shall mean the same as defined in 498A section of India Penal Code according to this:

Cruelty means-

a)  Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any such person related to her to meet such demand.

The section 113A was inserted by Criminal Law (second amendment) Act 46 of 1983. This was introduced because there was increasing number of dowry death, which was in fact a matter of serious concern. This evil was commented upon the Joint Committee of the House to examine the work of Dowry Prohibition Act, 1961. The cases of cruelty by the husband or relative of husband which would result in suicide or murder only constituted a small fraction. In order to move this difficulty it was proposed to amend Indian Penal Code, Indian Evidence Act and Criminal Procedure Code that could efficiently deal with the cases of dowry death as well as cruelty to married woman by her husband or his relatives.

The beauty of law is that if a person wants to get some remedy done through the court he has to prove the existence of certain factual situation. In the same way in order to attract the provision of s113A of the Indian Evidence Act the burden of proving the fact lies on the person who affirms it. This principle of burden of proof is applicable to all matrimonial offences. For attracting the provision of 113A the following things has to be proved.

1. Suicide must be committed by a married woman

2. Suicide must have been abetted by husband or any relative of her husband

3. Suicide must be committed with in seven years of the marriage

4. She must have been subjected to cruelty (as defined in 498A of Indian Penal Code) by her husband.

Presumption under section l13A refers to one of the three ingredients of abetment as defined in section 107 IPC i.e. instigation, conspiracy and intentional aiding of the act. Where conduct of the accused indicated that he did not want her to die even though he might have treated her cruelly earlier, it cannot be presumed that he abetted the suicide.

The presumption of abetment of suicide by a married woman is rebuttable. If the accused is able to prove that the woman has committed suicide by other reason or she was not harassed in her matrimonial house by her in-laws in the name of demanding more dowry. This presumption can be rebutted. There is an interesting fact to note that the presumption of 113A is applicable only against the husband not against woman. This was revealed with an interesting case that came before the High Court in 2000.

PRESUMPTION AS TO DOWRY DEATH

When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

Explanation- For the purposes of this section 'dowry death' shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860)

This section and the section 304B of Indian Penal Code have been added by the Dowry Prohibition (Amendment) Act No.43 of 1986 which was with effect from 19th November 1986. This was done in order to solve the increasing problem of dowry death. The word dowry death has been defined in 304B Indian Penal Code and the term dowry has been defined in section 2 of the Dowry Prohibition Act 1961

Section 304B of the Indian Penal Code states that-

Dowry death - (1) where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation. -  For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2)Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

While examining the constituents of dowry death the court held that:

(a) when the death of a woman is caused by any burns or bodily injury; or

(b) occurs otherwise than under normal circumstances;

(c) and the aforesaid two facts spring within seven years of girl's marriage;

(d) and soon before her death, she was subjected to cruelty or harassment by her husband or his relative;

With the introduction of the above-mentioned section the court would to some extent stop the violence and the atrocities committed to women. The presumptions has helped a lot in solving the problem of dowry death because in such cases it difficult to get evidence. The presumption is favourable to men at the same the courts could se that the women folk did not misuse this presumptions because in order to attract these presumptions the existence of certain facts have to be proved. The credit of trying to eradicate this evil should not be given to court alone; the legislature has also done a considerable amount of work. While enacting this provision it did not leave any loophole in order the convict to escape.

CONCLUSION

The legislature has by amending the Penal Code and Evidence Act made Penal Law more strident for dealing with and punishing offences against abetment to suicide. Such strident laws would have a deterrent effect on the offenders only if they are so stridently implemented by the law courts to achieve the legislative intent. On the facts found and the offence proved to have been committed leading to suicidal death. For offence under Section 306 IPC the sentence may extend to ten years. In case the husband is found to have harassed his wife to such an extent as to drive her to commit suicide, sentence of five years would be proper sentence for the crime with the amount of fine of Rs. 20000 to be paid to the parents of the deceased.

The Will

Will

Introduction

Will is a legal declaration of the intention of a testator through testamentary instrument with respect to his property, which he desires to be carried into effect after his death. It includes codicil and every document in writing making a voluntary posthumous disposition of property. A Will is ambulatory which may be amended or revoked during the lifetime of the testator of the Will.

The Andhra Pradesh High Court held that contents of the Will must indicate that it is intended to come into effect after death of testator and that it is revocable at any time prior to his death and a document cannot be treated as a Will by a mere reading of the heading of it; [Mandakini Naik v G.K. Naik, 2004 (3) ALT 829 (AP HC)].

A legacy through the Will lapses where the legatee dies before the testator. For instance, A makes a bequest of certain property in favour of B. However, B dies before A. The bequest, then, cannot naturally take effect and the legacy is said to have lapsed.

A legatee is liable to the creditors. He is liable to refund the legacy that he has received, irrespective of whether the assets of the testator’s estate are sufficient or not at the time of death of the testator to pay both debts and the legacies, as well as irrespective of whether the payment of legacy by the executor is voluntary or not.

A great weight is given to the wordings of a Will. A full effect must be given which is main part of operative portion of a Will in the light of declared wish of the testator as well as other provision of the Will. The court in any way has to interpret the words in their both ordinary and grammatical sense and simultaneously to give weight if there is absurdity or inconsistency. Hence, the whole of words should be taken together without any surmise in the light of the intention of testator. Where the maker includes additional words or phrases then it shall mean additional meaning. In order to ascertain the very material purpose of the Will, the court has to go through each and every word used by the testator in a Will.

Necessity

Most of the people would like to dispose of their property according to their own wishes through a Will. A Will after death of person, reduces the confusion of sharing property amongst the family members and relatives.

In case a person dies without making a Will, he is said to have died intestate. His property shall be inherited to his legal heirs in accordance with the personal law applicable to him i.e. The Hindu Succession Act, 1956, The Indian Succession Act, 1925, un-codified law of Muslims,  Parsis etc.

Types of Wills:

1. Privileged and unprivileged Wills: Wills executed according to section 63 of the Indian Succession Act, 1925 are called unprivileged Wills and Wills executed according to section 66 of the Indian Succession Act, 1925 by a soldier or airman or mariner employed in an expedition or engaged in actual warfare are called privileged Wills.

2. Conditional or contingent Wills: A will may be expressed to take effect only in the event of the happening of some contingency or condition, and if the contingency does not happen or the condition fails, the Will is not legally enforceable. A conditional will is void if the condition imposed is unlawful.

3. Joint Wills: A joint Will is a testamentary instrument whereby two or more persons agree to make a conjoint Will. Where a Will is joint, and is intended to take effect after the death of both, it will not be enforceable during the lifetime of either. Joint Wills are revocable at anytime by either of the testators during their joint lives, or after death of one, by the survivor.

A Will executed by two or more testators as a single document duly executed by each testator disposing of his separate properties or his joint properties is not a single Will. It operates on the death of each and is in effect for two or more Wills, on the death of each testator, the legatee would become entitled to the properties of the testator who dies.

4. Mutual Wills: A Will is mutual when two testators confer upon each other reciprocal benefits by either of them constituting the other his legatee. But when the legatees are distinct from the testators, there can be no position for Mutual Wills.

5. Duplicate Wills: A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him and the other to be deposited in the safe custody with a bank or executor or trustee. If the testator mutilates or destroys the one which is in his custody it is revocation of both.

6. Concurrent Wills: Generally, a man should leave only one Will at the time of his death. However, for the sake of convenience a testator may dispose of some properties in one country by one Will and the other properties in another country by a separate Will.

7. Sham Wills: If a document is deliberately executed with all due formalities purporting to be a Will, it will still be nullity if it can be shown that the testator did not intend it to have any testamentary operation, but was to have only some collateral object. One thing must be borne in mind that the intention to make the Will is essential for the validity of the Will.

8. Holograph Wills: Such Wills are written entirely in the handwriting of the testator.

What can be bequeathed in a Will

All properties, movable or immovable of which the testator is the owner and which are transferable can be disposed of by a Will. Property which is not legally transferable cannot be bequeathed. If a person has only a life-interest in a property, he cannot make a Will in respect of it. A Hindu governed by Mitakshara law can bequeath his interest in the joint family property to any person he desires by means of a Will. But a female Hindu, in all cases, is entitled to dispose of her property without any restriction. In case of leasehold property, so long as lease does not expire, the bequest is effective. If the lease expires during the lifetime of a testator, no bequest is made.

The testator has no right to bequeath all the assets to an institution or a trust leaving his family and dependants in poverty and deprivation. The member’s of the testator’s family are entitled to claim maintenance from the estate of the testator.

Who can make a Will

According to section 5 of the Indian Succession Act, 1925 every person of sound mind and not being a minor may dispose of his property by Will.

Proof and effect of Will

Probate is a certificate issued by court on the application of the executor appointed by a Will to the effect that the Will is valid. It is also the official evidence of the executor’s right to administer the estate of a deceased person.

Executor is a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided.

Letters of administration is granted when a person who had executed a legally valid Will dies without having named an executor and on application by one of the beneficiaries named in the Will. The procedure for grant of Letters of administration is more or less similar to that for the grant of probate.

To establish a right of an estate under the Will, a probate or Letters of administration granted by a competent court needs to be attached.

Execution of wills

Section 63 of the Indian Succession Act, 1925 provides that every testator other than a soldier or an airman or a mariner employed in an expedition or engaged in actual warfare must execute his Will according to the following rules:

He must sign or must affix his mark to the Will, or it must be signed by some other person in his presence and by his direction; and the signature or the mark of the testator, or the signature of the person signing for him, must be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. It is further provided that the Will must be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of such witnesses must sign the Will in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary.

Applicability of Indian Evidence Act, 1872

The provisions of the Indian Evidence Act, 1872, apply to Wills as to other documents and the court may draw the presumption under it in deciding whether the Will has been properly attested or not.

The Executor

The executor is the most important person in the Will. Executor is defined in the Indian Succession Act, 1925, as a person to whom the execution of the last Will of a deceased person, is by the testator’s appointment confided. An executor is charged with the duty and conferred with the power to carry out the directions contained in the Will. He has to collect and realize the estate of the deceased, pay his debts and distribute the legacies.

The executor shall file the petition for obtaining probate of the Will. The court shall grant probate only to an executor who has been named in the Will.

The executor should not be minor. The executor should be younger than testator in age so that there is greater possibility of his outliving or surviving the testator.

Administrator

In case the deceased has not appointed an executor then the court shall appoint one. Also in case the executor is incapable of or refuses to act or has predeceased the testator or the executor dies after having proved the Will but before administering all the estates of the deceased, the court shall appoint an administrator at the instance of interested person or persons.

Registration of Will

Registration of a Will is purely an optional matter. It is not compulsory at all. No inference can be drawn by the Court or any authority about the genuineness of a Will on the ground of its non-registration. Nor a Will can be accepted as genuine by courts even though it has been registered.

Will

Introduction

Will is a legal declaration of the intention of a testator through testamentary instrument with respect to his property, which he desires to be carried into effect after his death. It includes codicil and every document in writing making a voluntary posthumous disposition of property. A Will is ambulatory which may be amended or revoked during the lifetime of the testator of the Will.

The Andhra Pradesh High Court held that contents of the Will must indicate that it is intended to come into effect after death of testator and that it is revocable at any time prior to his death and a document cannot be treated as a Will by a mere reading of the heading of it; [Mandakini Naik v G.K. Naik, 2004 (3) ALT 829 (AP HC)].

A legacy through the Will lapses where the legatee dies before the testator. For instance, A makes a bequest of certain property in favour of B. However, B dies before A. The bequest, then, cannot naturally take effect and the legacy is said to have lapsed.

A legatee is liable to the creditors. He is liable to refund the legacy that he has received, irrespective of whether the assets of the testator’s estate are sufficient or not at the time of death of the testator to pay both debts and the legacies, as well as irrespective of whether the payment of legacy by the executor is voluntary or not.

A great weight is given to the wordings of a Will. A full effect must be given which is main part of operative portion of a Will in the light of declared wish of the testator as well as other provision of the Will. The court in any way has to interpret the words in their both ordinary and grammatical sense and simultaneously to give weight if there is absurdity or inconsistency. Hence, the whole of words should be taken together without any surmise in the light of the intention of testator. Where the maker includes additional words or phrases then it shall mean additional meaning. In order to ascertain the very material purpose of the Will, the court has to go through each and every word used by the testator in a Will.

Necessity

Most of the people would like to dispose of their property according to their own wishes through a Will. A Will after death of person, reduces the confusion of sharing property amongst the family members and relatives.

In case a person dies without making a Will, he is said to have died intestate. His property shall be inherited to his legal heirs in accordance with the personal law applicable to him i.e. The Hindu Succession Act, 1956, The Indian Succession Act, 1925, un-codified law of Muslims,  Parsis etc.

Types of Wills:

1. Privileged and unprivileged Wills: Wills executed according to section 63 of the Indian Succession Act, 1925 are called unprivileged Wills and Wills executed according to section 66 of the Indian Succession Act, 1925 by a soldier or airman or mariner employed in an expedition or engaged in actual warfare are called privileged Wills.

2. Conditional or contingent Wills: A will may be expressed to take effect only in the event of the happening of some contingency or condition, and if the contingency does not happen or the condition fails, the Will is not legally enforceable. A conditional will is void if the condition imposed is unlawful.

3. Joint Wills: A joint Will is a testamentary instrument whereby two or more persons agree to make a conjoint Will. Where a Will is joint, and is intended to take effect after the death of both, it will not be enforceable during the lifetime of either. Joint Wills are revocable at anytime by either of the testators during their joint lives, or after death of one, by the survivor.

A Will executed by two or more testators as a single document duly executed by each testator disposing of his separate properties or his joint properties is not a single Will. It operates on the death of each and is in effect for two or more Wills, on the death of each testator, the legatee would become entitled to the properties of the testator who dies.

4. Mutual Wills: A Will is mutual when two testators confer upon each other reciprocal benefits by either of them constituting the other his legatee. But when the legatees are distinct from the testators, there can be no position for Mutual Wills.

5. Duplicate Wills: A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him and the other to be deposited in the safe custody with a bank or executor or trustee. If the testator mutilates or destroys the one which is in his custody it is revocation of both.

6. Concurrent Wills: Generally, a man should leave only one Will at the time of his death. However, for the sake of convenience a testator may dispose of some properties in one country by one Will and the other properties in another country by a separate Will.

7. Sham Wills: If a document is deliberately executed with all due formalities purporting to be a Will, it will still be nullity if it can be shown that the testator did not intend it to have any testamentary operation, but was to have only some collateral object. One thing must be borne in mind that the intention to make the Will is essential for the validity of the Will.

8. Holograph Wills: Such Wills are written entirely in the handwriting of the testator.

What can be bequeathed in a Will

All properties, movable or immovable of which the testator is the owner and which are transferable can be disposed of by a Will. Property which is not legally transferable cannot be bequeathed. If a person has only a life-interest in a property, he cannot make a Will in respect of it. A Hindu governed by Mitakshara law can bequeath his interest in the joint family property to any person he desires by means of a Will. But a female Hindu, in all cases, is entitled to dispose of her property without any restriction. In case of leasehold property, so long as lease does not expire, the bequest is effective. If the lease expires during the lifetime of a testator, no bequest is made.

The testator has no right to bequeath all the assets to an institution or a trust leaving his family and dependants in poverty and deprivation. The member’s of the testator’s family are entitled to claim maintenance from the estate of the testator.

Who can make a Will

According to section 5 of the Indian Succession Act, 1925 every person of sound mind and not being a minor may dispose of his property by Will.

Proof and effect of Will

Probate is a certificate issued by court on the application of the executor appointed by a Will to the effect that the Will is valid. It is also the official evidence of the executor’s right to administer the estate of a deceased person.

Executor is a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided.

Letters of administration is granted when a person who had executed a legally valid Will dies without having named an executor and on application by one of the beneficiaries named in the Will. The procedure for grant of Letters of administration is more or less similar to that for the grant of probate.

To establish a right of an estate under the Will, a probate or Letters of administration granted by a competent court needs to be attached.

Execution of wills

Section 63 of the Indian Succession Act, 1925 provides that every testator other than a soldier or an airman or a mariner employed in an expedition or engaged in actual warfare must execute his Will according to the following rules:

He must sign or must affix his mark to the Will, or it must be signed by some other person in his presence and by his direction; and the signature or the mark of the testator, or the signature of the person signing for him, must be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. It is further provided that the Will must be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of such witnesses must sign the Will in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary.

Applicability of Indian Evidence Act, 1872

The provisions of the Indian Evidence Act, 1872, apply to Wills as to other documents and the court may draw the presumption under it in deciding whether the Will has been properly attested or not.

The Executor

The executor is the most important person in the Will. Executor is defined in the Indian Succession Act, 1925, as a person to whom the execution of the last Will of a deceased person, is by the testator’s appointment confided. An executor is charged with the duty and conferred with the power to carry out the directions contained in the Will. He has to collect and realize the estate of the deceased, pay his debts and distribute the legacies.

The executor shall file the petition for obtaining probate of the Will. The court shall grant probate only to an executor who has been named in the Will.

The executor should not be minor. The executor should be younger than testator in age so that there is greater possibility of his outliving or surviving the testator.

Administrator

In case the deceased has not appointed an executor then the court shall appoint one. Also in case the executor is incapable of or refuses to act or has predeceased the testator or the executor dies after having proved the Will but before administering all the estates of the deceased, the court shall appoint an administrator at the instance of interested person or persons.

Registration of Will

Registration of a Will is purely an optional matter. It is not compulsory at all. No inference can be drawn by the Court or any authority about the genuineness of a Will on the ground of its non-registration. Nor a Will can be accepted as genuine by courts even though it has been registered.

The Will

Will

Introduction

Will is a legal declaration of the intention of a testator through testamentary instrument with respect to his property, which he desires to be carried into effect after his death. It includes codicil and every document in writing making a voluntary posthumous disposition of property. A Will is ambulatory which may be amended or revoked during the lifetime of the testator of the Will.

The Andhra Pradesh High Court held that contents of the Will must indicate that it is intended to come into effect after death of testator and that it is revocable at any time prior to his death and a document cannot be treated as a Will by a mere reading of the heading of it; [Mandakini Naik v G.K. Naik, 2004 (3) ALT 829 (AP HC)].

A legacy through the Will lapses where the legatee dies before the testator. For instance, A makes a bequest of certain property in favour of B. However, B dies before A. The bequest, then, cannot naturally take effect and the legacy is said to have lapsed.

A legatee is liable to the creditors. He is liable to refund the legacy that he has received, irrespective of whether the assets of the testator’s estate are sufficient or not at the time of death of the testator to pay both debts and the legacies, as well as irrespective of whether the payment of legacy by the executor is voluntary or not.

A great weight is given to the wordings of a Will. A full effect must be given which is main part of operative portion of a Will in the light of declared wish of the testator as well as other provision of the Will. The court in any way has to interpret the words in their both ordinary and grammatical sense and simultaneously to give weight if there is absurdity or inconsistency. Hence, the whole of words should be taken together without any surmise in the light of the intention of testator. Where the maker includes additional words or phrases then it shall mean additional meaning. In order to ascertain the very material purpose of the Will, the court has to go through each and every word used by the testator in a Will.

Necessity

Most of the people would like to dispose of their property according to their own wishes through a Will. A Will after death of person, reduces the confusion of sharing property amongst the family members and relatives.

In case a person dies without making a Will, he is said to have died intestate. His property shall be inherited to his legal heirs in accordance with the personal law applicable to him i.e. The Hindu Succession Act, 1956, The Indian Succession Act, 1925, un-codified law of Muslims,  Parsis etc.

Types of Wills:

1. Privileged and unprivileged Wills: Wills executed according to section 63 of the Indian Succession Act, 1925 are called unprivileged Wills and Wills executed according to section 66 of the Indian Succession Act, 1925 by a soldier or airman or mariner employed in an expedition or engaged in actual warfare are called privileged Wills.

2. Conditional or contingent Wills: A will may be expressed to take effect only in the event of the happening of some contingency or condition, and if the contingency does not happen or the condition fails, the Will is not legally enforceable. A conditional will is void if the condition imposed is unlawful.

3. Joint Wills: A joint Will is a testamentary instrument whereby two or more persons agree to make a conjoint Will. Where a Will is joint, and is intended to take effect after the death of both, it will not be enforceable during the lifetime of either. Joint Wills are revocable at anytime by either of the testators during their joint lives, or after death of one, by the survivor.

A Will executed by two or more testators as a single document duly executed by each testator disposing of his separate properties or his joint properties is not a single Will. It operates on the death of each and is in effect for two or more Wills, on the death of each testator, the legatee would become entitled to the properties of the testator who dies.

4. Mutual Wills: A Will is mutual when two testators confer upon each other reciprocal benefits by either of them constituting the other his legatee. But when the legatees are distinct from the testators, there can be no position for Mutual Wills.

5. Duplicate Wills: A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him and the other to be deposited in the safe custody with a bank or executor or trustee. If the testator mutilates or destroys the one which is in his custody it is revocation of both.

6. Concurrent Wills: Generally, a man should leave only one Will at the time of his death. However, for the sake of convenience a testator may dispose of some properties in one country by one Will and the other properties in another country by a separate Will.

7. Sham Wills: If a document is deliberately executed with all due formalities purporting to be a Will, it will still be nullity if it can be shown that the testator did not intend it to have any testamentary operation, but was to have only some collateral object. One thing must be borne in mind that the intention to make the Will is essential for the validity of the Will.

8. Holograph Wills: Such Wills are written entirely in the handwriting of the testator.

What can be bequeathed in a Will

All properties, movable or immovable of which the testator is the owner and which are transferable can be disposed of by a Will. Property which is not legally transferable cannot be bequeathed. If a person has only a life-interest in a property, he cannot make a Will in respect of it. A Hindu governed by Mitakshara law can bequeath his interest in the joint family property to any person he desires by means of a Will. But a female Hindu, in all cases, is entitled to dispose of her property without any restriction. In case of leasehold property, so long as lease does not expire, the bequest is effective. If the lease expires during the lifetime of a testator, no bequest is made.

The testator has no right to bequeath all the assets to an institution or a trust leaving his family and dependants in poverty and deprivation. The member’s of the testator’s family are entitled to claim maintenance from the estate of the testator.

Who can make a Will

According to section 5 of the Indian Succession Act, 1925 every person of sound mind and not being a minor may dispose of his property by Will.

Proof and effect of Will

Probate is a certificate issued by court on the application of the executor appointed by a Will to the effect that the Will is valid. It is also the official evidence of the executor’s right to administer the estate of a deceased person.

Executor is a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided.

Letters of administration is granted when a person who had executed a legally valid Will dies without having named an executor and on application by one of the beneficiaries named in the Will. The procedure for grant of Letters of administration is more or less similar to that for the grant of probate.

To establish a right of an estate under the Will, a probate or Letters of administration granted by a competent court needs to be attached.

Execution of wills

Section 63 of the Indian Succession Act, 1925 provides that every testator other than a soldier or an airman or a mariner employed in an expedition or engaged in actual warfare must execute his Will according to the following rules:

He must sign or must affix his mark to the Will, or it must be signed by some other person in his presence and by his direction; and the signature or the mark of the testator, or the signature of the person signing for him, must be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. It is further provided that the Will must be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of such witnesses must sign the Will in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary.

Applicability of Indian Evidence Act, 1872

The provisions of the Indian Evidence Act, 1872, apply to Wills as to other documents and the court may draw the presumption under it in deciding whether the Will has been properly attested or not.

The Executor

The executor is the most important person in the Will. Executor is defined in the Indian Succession Act, 1925, as a person to whom the execution of the last Will of a deceased person, is by the testator’s appointment confided. An executor is charged with the duty and conferred with the power to carry out the directions contained in the Will. He has to collect and realize the estate of the deceased, pay his debts and distribute the legacies.

The executor shall file the petition for obtaining probate of the Will. The court shall grant probate only to an executor who has been named in the Will.

The executor should not be minor. The executor should be younger than testator in age so that there is greater possibility of his outliving or surviving the testator.

Administrator

In case the deceased has not appointed an executor then the court shall appoint one. Also in case the executor is incapable of or refuses to act or has predeceased the testator or the executor dies after having proved the Will but before administering all the estates of the deceased, the court shall appoint an administrator at the instance of interested person or persons.

Registration of Will

Registration of a Will is purely an optional matter. It is not compulsory at all. No inference can be drawn by the Court or any authority about the genuineness of a Will on the ground of its non-registration. Nor a Will can be accepted as genuine by courts even though it has been registered.