WILL/PROBATE/LETTERS OF ADMINISTRATION
There are two ways in which a person’s property is devolved upon its successors or legal heirs. Firstly, by way of execution of a Will made by such person (Testamentary Succession) or by way of personal laws to which the deceased person is subject to (Intestate Succession).
The devolution of property belonging to a Hindu is regulated by Hindu Succession Act 1956.
Section 30 of the 1956 Act provides that a Hindu may dispose of his property by way of Will as prescribed under the Indian Succession Act 1925.
Indian Succession Act 1925 recognises a Will made by a Hindu who is of sound mind at the time of making the Will and has made the Will voluntarily without any coercion, fraud or importunity. The testator/maker of the Will can revoke or alter the Will at any time when he is of sound mind and is not making the changes out of any coercion, fraud or importunity.
Thus, it is necessary to note that a Will be void ab initio (invalid since its inception), under the following circumstances:
- It is not made by a person who is of unsound mind
- It is made by a person who is under coercion,
- It is made by a person upon whom fraud has been played by the beneficiary or by any third person in favour of the beneficiary
- It is made by a person who is under pressure due to importunity
Section 62 of the Indian Succession Act 1925 provides that a testator must sign the Will or affix his mark to the Will and the same shall be signed by two or more witnesses.
To claim a right over a property bequeathed by way of Will, the same has to be established by filing an application for Probate or letters of administration of the Will before a court of competent jurisdiction.
Will may be registered with the Sub-Registrar of the District. It is to be noted that a registered Will has more authenticity than an unregistered Will and it is easier to get a probate for the executor of the Will.
Petition of probate is filed under Section 280 of the Indian Succession Act 1925 and petition for letters of administration is filed under Section 278 of the 1925 Act before the District Judge.
SUCCESSION CERTIFICATE
A Succession Certificate is required for the purpose of claiming a stock, bond, debenture or share in a company, fixed deposits and savings account in a bank.
An application under Section 372 of the Indian Succession Act 1925 is required to be filed before the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death.
The application must include the time of death of the deceased, residence of the deceased, family or near relatives and their respective addresses.
It must also include the right under which the Applicant is claiming and enumerate the debts and securities in respect of which the certificate is required.
The proceedings of the issuance of succession certificate are done in a summary manner, however, if the judge in his discretion on the basis of objections received may issue the certificate to the person having prima facie the best title while deciding the same may have regard to the extent of interest and fitness in other respects of the applicants.
Incase of objections or many applicants, the judge may require the Petitioner to furnish an indemnity bond with sureties.