Will Issue
Querist :
Anonymous
(Querist) 07 August 2018
This query is : Resolved
Hi Experts,
I have below mentioned Issues wrt a Will which has been creating problems for us.Can you please provide us with details of Judgements by Supreme Court of India in this regards?
1. Is it manadatory for a Will to be registered ?
2. Is a Will acceptable if it certified by Notary Public on Rs 5 notary stamp ?
3. The Testator has written like "After my death, all the rights that I have will go to my Wife and after her death all the rights that I have will go to my Brother and Sister".
Can a Will be accepted as per Law, if the transfer of rights are mentioned in this hierarchy ?
4. Can a Witness to a Will be 2 Advocates ? The Will has been attested by 2 witnesses who are advocates.
I have heard the Advocates cannot be witnesses to a Will as per Supreme Court's judgement. Can you please provide the details of that Judgement ?
Thanks
Ajay
Vijay Raj Mahajan
(Expert) 07 August 2018
The registration of the Will not compulsory under the Registration Act, its optional. The Will can be written on plan paper no need to write it on any non-judicial stamp paper, but if made its fine. Attested by notary also fine. Witnesses can be any persons even advocates as individuals known to the testator. As far the contents of the Will is concerned that can be anything which the testator wants to mention about his property and how he want to be, if he want the property or right in the property should go to his wife after his death and in event of his death it should go to particular persons, there is nothing wrong in mentioning this, but the fact remains that once the property goes to his wife after his death, it becomes the absolute property of the wife, in such case she can dispose the property as she so desire, if she disposes the property by her sweet will how the other two get that property back after her death?
The clarification with regard to this has to be made, the wife shall have limited right over the property to use it and not to dispose it during her lifetime and even after her death by making any Will for herself and she only has powers to use and enjoy the property but not dispose it as she will be holding it for the other persons who are named in the Will. This clarification will make the Will clear in all respect.
By the way two advocates are signing as the witnesses and they must have drafted the Will, were they such duffers that could not bring this clarification in the Will?
Dr J C Vashista
(Expert) 08 August 2018
I endorse the expert advise of Mr. Vijay Raj Mahajan.
Will do not require compulsory registration, to be written/drafted on a plain paper, may be attested by a Notary Public and can be attested by any two persons (competent to contract).
By the way, you, Mr. Ajay and both the witnesses stated to be advocates are either giving examination to the respondents/ experts or stupids.
Kumar Doab
(Expert) 09 August 2018
Pls don’t post as AQ and post with your ID and you can get many replies.
Your ID does not mean your email id or phone number and don’t post these also.
Kumar Doab
(Expert) 09 August 2018
It is mandatory to probate the WILL in the areas of Bombay, Calcutta, and Madras.
It is not mandatory to probate the WILL in the area of Delhi. It is not mandatory to register the WILL.
The WILL should just be valid. Unregistered WILL can be acted upon.
The last valid WILL prevails.
Advocate can be witness and IT may not arouse suspicion more so if advocates are not beneficiary.
A WILL can contested.
If there is NO contest to the WILL by any legal heir then authority shall act upon the WILL without any cloud on it and transfer the ownership in the name of beneficiary.
If WILL is contested it lands up in probate court of pecuniary jurisdiction. The court shall decide on validity of WILL.
Kumar Doab
(Expert) 09 August 2018
Until valid WILL is duly acted upon without any cloud on IT/probated IT is say; mere piece of paper..
The courts do care to execute last wish of testator..
Submit the WILL to O/O Authority under whose jurisdiction property falls or probate court ...
The beneficiary shall get the well reasoned decision..
Kumar Doab
(Expert) 09 August 2018
Approach your ownb very able senior LOCAL counsel of unshakable repute and integrity specializing in Testamentary/Succession/Civil matters and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..with whom you may share inputs /show the documents/evidence for a considered opinion..
At each location three are some counsels that specialize in such matters and they are well known.
Check for such counsels at LOCAL civil courts, HC, SC……
