This article is written by Millia Dasgupta, a second-year student, studying BA LLB at Jindal Global Law School. This article covers the importance of a date on a will.
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We must admit, lots of factors go behind the drafting of a will. Wills are important in one’s life. You trust your lives most valuable assets to the people you love. But for a document so important, you give the duty of drafting to another person. Despite being experts, small details can be missed out due to human error. One of these mistakes can be missing out on the date.
Now the question you might ask is what is so important about a date, especially when one has followed the procedure of attesting and proper registration. While it may seem like a small detail, it may be a cause of a great headache for you later on down the line.
There are no sections in the Indian Succession Act of 1925, we shall discuss the significance of the date on a will, along with a few case laws.
What is a Will?
A will is a legal document, written by an individual where he expresses who his legal heirs are and how he wishes to divide his assets and property among them.
There are three parties involved. The testator whose will is being expressed in the will, the executor who manages the distribution of the estate(property and assets of the testator, basically his net worth at the time of death) after the death of the testator and the legal heirs, who receive the estate.
What is Probate?
A probate is a legal process of determining whether a will is valid or not. It is also a process to verify the authenticity of the will.
Who can apply for probate?
One can apply for probate to the appropriate court. If an executor is not appointed by the person who has written the will, then an application for a letter of administration must be written to the court to ask for an executor.
Not all wills are subject to probate. But if a will has properties situated in Chennai, Mumbai, and Kolkata, then an application for probate is necessary.
Apart from that if there is a dispute in properties, then probate can be filed regardless of where the property is located.
Petition against Probate
It can be filed in the appropriate city civil court or the High Court of the area of jurisdiction. This varies on the value of the property i.e- property of high value goes to the High Court, where as the properties of comparatively less value goes to the appropriate city civil court.
- Proof of death of the person who has written the will.
- Legal heir certificate or list of legal heirs.
- Proof that the will is written in his own consciousness and not in any other circumstances.
Process of Probating a Will
After an application has been made, a notice will be sent from the court to all the legal heirs and the testator’s nearest kin. A newspaper publication will be made to raise any objections. If no objections are raised and the court finds the conditions under which the will was drafted and registered are favorable, then the probate will be granted.
Acts Dealing With Probate
Probate is done under the Indian Succession Act of 1925. The following sections are with regard to probate.
This section defines what probate is. It defines it as “the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.”
Sections 213 and 214
This section states that a person who has been appointed as an executor must receive a grant of probate before expressing his authority.
Section 219 of the Indian Succession Act, 1925
This section states that for Hindu, Mohammedan, Buddhist, Sikh or Jain or an exempted person, people who are connected to then through marriage or are a descended will be able to get a letter of administration. It also states that for Hindu’s and Muslims, probate is not mandatory.
Sections 112 to 117 of ‘Indian Succession Act
These sections rule that individuals of certain dispositions will not be able to be a litagee under this Act. For example, a minor can not be a litagee under this Act.
Importance of date
Speaking from a legal standpoint, there is no provision which demands a date or states that the court must rule a will invalid if a date is not there. However, just because it is not backed legally, does not mean that its importance is in any way decreased. A date of a will is an extremely important piece of information. It is with reference to the date that the court decides the validity of the will.
The date is a reference point of a will. It is a tool that helps the court decide whether a tool is valid or not. There are everyday practical scenarios where the date plays an important part. For example, in regards to a person suffering from dementia who wishes to divide his property among his legal heirs, a date on the will and the court to determine whether he wrote the will when he was of proper mental capacity or when he started to suffer from such a disease. The date also validates other documents and witnesses that the party bring towards the desk to prove the validity of the will. It assures the court that the documents brought are not documents issued after the will is registered.
It is also common practice for individuals to issue multiple wills. With each will, not only the amount of property but the legal heir’s vary. The first will issued, legal heir A was getting a majority share of the assets but in the recent will, legal heir A is completely excluded from the will. If the date is not present on the will, it will be difficult for the courts to decide which is the most recent will and thus, the deceased individual wanted to be executed.
A date without a will also gives the courts even more reason to believe a will has been registered under shady circumstances when a will’s validity is put into question. If the court suspects the will has not been drafted and registered under proper process, the absence of a date will just aid their suspicions.
Thus while the court will not penalize or rule a will invalid solely on the absence of a date, we can see that it is important to add one anyway.
The property in dispute was at New Rajinder Nagar, New Delhi. The disputed property was divided between two brothers, Ganpat Rai Chadha and Nand Gopal Chadha. Ganpat Rai Chadha executed a will which was allegedly registered on 26/10/1997, but remained undated. The will was with regards to the 50% share he had where he gave 40% of the sale proceeds to the appellant, a religious institute.
After the death of the Ganpat Rai Chadha, the appellant according to the procedure applied for a letter of probate. The court issued a notice to all the legal heirs. While most of them did not respond, Nand Gopal Chadha, the brother replied and questioned the validity of the will.
Nand Gopal Chadha contested that the will was issued under undue influence.
Whether the absence of a date on the will make the will invalid?
In this case, the Delhi High Court commented that “merely because it was undated could not render it non-existent when its registration was on record and undisputed”.
It is essential to note here that the court did not have any reason to believe the will was suspicious, thus the absence of date did not aid them in forming such an idea.
A letter of probate was sent to the appropriate court as the circumstances around the drafting of the will were suspicious.
The Civil Judge (Senior Division) and Principal District Judge of the appropriate courts held that the will could not be probated. This was because the will was shrouded with suspicious circumstances that the propounder could not prove a proper defense or evidence against such allegations.
The appellants appealed to the high court of Bombay against the order of the lower courts.
Whether the undated will was valid.
The Courts below held that the will was invalid and this was done after properly analyzing all the facts and circumstances surrounding the will. The Bombay High Court ruled that thus, it would be improper for them to rule against an order which was given out after a proper investigation of the circumstances and where the facts pointed to the will, being invalid.
It should be noted that the will was rejected because its registration was shrouded with suspicious circumstances, not because it was undated. But, the fact that the will was undated aided the court to come to the conclusion that the will is invalid.
Proving the validity of a will is an extremely important task. There are no sections in the Indian Succession Act of 1925 that penalizes the absence of a date, we can see that it is an important factor in convincing judges whether a will is valid or not. Thus, extreme caution should be taken while drafting such documents.
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