han (ceo) 02 July 2010

time limit for will???

hi i just wanted to clarify couple of things :

1. my uncle made a "will" at the age of 84 years on a stamp paper with his family lawyer!!! with all the proper legal doucuments with two witness signatures and got it registered but he did not take a doctors certificate for being of "sound mind" or being of "sane mind" so is this "will" valid ???? can his sisters claim the "will" is not valid cus it got no doctors certificate ????? does a "will" made after 80 years require a doctors certificate for being of sound mind?????doesnt registration of the "will" make it a valid "will" made by a sound mind person????? pls clarify

2.the "will" come's into effect after the demise of the testor but is their a time limit on the "will" to be probated in a court ??? can a "will" be probated at a court after 3 years of demise of the testor???? or the "will" needs to be probated at a court soon after the demise of the testor??????? pls clarify

Reply Follow

2 Replies

(Guest)

In my opinion there is no time limit to probate a will. Even ther eis no time limit to register a will.

Ld. members may educate me too with points of Law.

Rgds.

(Guest)

In my opinion U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity of the Will. It is not rocket science that most of the Wills are not made by young persons who are fully fit (means health wise) but are made by persons who are aged and bed ridden, hence, law does not expect that the testator should be in a perfect state of health, or that he should be able to give complicated instructions as to how his property was to be distributed after his/her death.

A sound disposing mind implies sufficient capacity to deal with and understand the disposition of property in his Will -

1) the testator must understand that he is giving away his property to one or more objects,
2) he must understand and recollect the extent of his property ,
3) he must also understand the persons and the extent of claims included as well as those who are excluded from the Will

Explanation III of S. 59 of Indian Succession Act provides for persons who are mentally ill and insane. However subsequent insanity does not make the Will invalid i.e. if a person makes a Will while he is of sound mind and then subsequently becomes insane the Will is valid and is not rendered invalid by subsequent insanity. Further a person of unsound mind can make a Will during his lucid interval. A Will made by a person who is intoxicated or is suffering from any other illness, which renders him incapable of knowing what he is doing, is invalid.

Though the "burden of proof" to prove that the Will was made out of free volition is on the person who propounds the Will , a Will that has been "proved to be duly signed and attested" Will be presumed to have been made by a person of sound mind, unless proved otherwise.

Suggest to search for services of a ld. member by searching database of LCI as per your location for further guidence in this reagrd.

ATB, Rgds