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‘Will Is Validy Executed’ Doesn’t Mean ‘Will Is Genuine’

January 23, 2025/in Blog /by legal-web-admin

On January 3, 2025, the Supreme Court of India issued a significant ruling addressing the distinction between the valid execution of a Will and its genuineness. The Court observed that proving the execution of a Will as per Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872, does not automatically establish its genuineness. This decision arose in the case of Lilian Coelho & Ors. v. Myra Philomena Coalho.[1]

Case Background

Myra Philomena Coalho (plaintiff) filed a petition seeking Letters of Administration (LOA) for the Will of her deceased mother, Mrs. Maria Francisca Coelho.
The Single Judge Bench of the Bombay High Court held that the Will was validly executed but dismissed the suit, citing suspicious circumstances surrounding the Will.
The Division Bench overturned the Single Judge’s findings, stating that the Will was validly executed and genuine. The case was decreed in favor of the plaintiff.
The matter was taken to the Supreme Court, where a Bench comprising Justices C.T. Ravikumar and Sudhanshu Dhulia clarified critical legal principles regarding Wills.

Supreme Court’s Key Observations

Validity vs. Genuineness of Wills

The Court emphasized that the valid execution of a Will and its genuineness are distinct concepts.

It noted: “Holding that a ‘Will is validly executed’ and a ‘Will is genuine’ cannot be said to be the same. Even if execution is established, the Court must evaluate any suspicious circumstances.”

The Court reiterated its duty to call upon the propounder to address and clarify any suspicious circumstances.

It cited earlier rulings, including Derek A.C. Lobo v. Ulric M.A. Lobo (2023) and Kavita Kanwar v. Pamela Mehta & Ors., to affirm:

“It is the irrecusable duty of the Court to require the propounder to remove such suspicious circumstances to satisfy its conscience.”

Division Bench’s Error

The Court criticized the Division Bench for presuming the genuineness of the Will without evaluating the suspicious circumstances raised by the Single Judge.

It observed: “The Division Bench’s decision overlooked the fact that the findings of the Single Judge did not pertain to the genuineness of the Will but only its execution.”

The Supreme Court rejected the Division Bench’s conclusion that the Will was genuine and upheld the Single Judge’s reasoned approach.

Clarifications on Legal Principles

The Court highlighted that the absence of a finding on genuineness in the Division Bench’s ruling rendered it untenable. It clarified that even a validly executed Will can be rejected if the propounder fails to explain suspicious circumstances satisfactorily.

Conclusion

Therefore, the Supreme Court observed that once the execution of the will is proved as per Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, then it shall be the ‘irrecusable duty’ of Court to call upon a propounder (person presenting the will before the Court for approval) to remove any raised suspicious circumstances.

[1] Civil Appeal No. 7198 of 2009.

Understanding Probate: A Complete Guide to Will Execution and Legal Processes

January 22, 2025/in Blog /by legal-web-admin

Will is a legal document that specifies the person’s intention and wishes, which needs to be performed after his/her death. The maker of the will is known as the testator/testatrix, and it can be revoked only during his/her lifetime whereas a Probate is defined under the Indian Succession Act, 1925 as – “A copy of will certified under the seal of the court of competent jurisdiction with a grant of administration of the estate of the testator”.

The person who makes a will expresses his wishes to be executed after his death by certain persons named in the will. The persons named in the will to execute it are called its executors. Probate can be granted only to the executor of the will. It is necessary if the will is for immovable assets in multiple states. Probate is conclusive proof that the will was executed validly, is genuine, and is the deceased’s last will.

Under the Indian Succession Act 1925, probate is mandatory when all the below conditions are fulfilled-

A Will within the geographical limits of the state of West Bengal and municipal limits of the metro cities of Chennai and Mumbai.
The Will is made by a Hindu, Jain, Sikh or Buddhist residing in the state of West Bengal, Chennai or Mumbai.
The Will deals with movable and/or immovable property situated in the state of West Bengal, Chennai or Mumbai.

Although the probate of the will is not mandatory in all other cases, it is advisable to obtain probate in cases where there is a probability of the validity of the will being challenged on any grounds in the future.

How to apply for probate of a will?

The following is the process for obtaining the probate of a will-

The executor of the will is required to file a petition and the original will to the court for grant of probate.
In the petition, the executor (who will be the petitioner in the case) has to mention the names and addresses of the deceased’s legal heirs so that notice can be issued to them.
The executor will have to pay the applicable court fees depending upon the value of the assets.
The petition must be filed before a competent court. The pecuniary jurisdiction (Jurisdiction of the court depends on the petition’s monetary value) may require a higher court to issue probate for high-value immovable assets through an advocate.
The next step is that the court asks the petitioner to establish the testator’s proof of death, proof that the testator’s will has been validly executed and confirm that this is the last will of the deceased.
Next, the court calls for objections by issuing notice to the next of kin of the deceased to raise objections, if any, and also orders the publication of a citation of the probate petition on board to notify the general public.
If there are no objections, then the court grants the probate.
If there are objections, then the probate petition becomes the original suit, and the parties will have to lead evidence and argue the matter. The court will pass judgment in the probate suit based on the evidence and arguments.
The cost of obtaining probate varies from state to state as the District Court grants it. The fees depend on the value of the assets, which are the subject matter of the petition. In addition to court fees, the petitioner also has to bear the lawyer’s fees. These costs will be borne out of the estate of the deceased.

Why is the probate of a will necessary?

Probate is necessary when an estate’s assets are solely in the name of the deceased person. Probate of a will is necessary to transfer the estate’s property into the name of the beneficiaries.

Which is the competent court to file for the probate of will?

The executor of the will can file for the probate of the will in the state in which the deceased person was living at the time of death. Thus, the competent court to file probate proceedings is the district court of the city/town where the deceased lived at the time of death.

What assets are subject to probate?

Probate assets are any assets that are owned solely by the deceased person. It can include real property whose title is solely in the name of the deceased person or held as a tenant in common. Personal properties such as furniture, jewellery, and automobiles can be included too.

Can a will be probated before death in India?

A will cannot be probated before the death of the person making the will. The executor of the will should file for probate only upon the death of the testator (maker) of the will.

Who is an executor of a will?

An executor is a person who is responsible for the execution of the will, i.e. for distributing the asset of the deceased person as per his/her wishes. It is not mandatory to name an executor in the will. However, to ensure that the will is executed as per the deceased person’s wishes and interpreted correctly, it is advisable to name an executor.

Who can apply for probate when there is no executor mentioned in a will?

When the testator does not appoint or mention an executor in a will, the legal heirs of the testator can appoint a person as the administrator of a will. The administrator will have all the rights of the executor to dispose of the property mentioned in the will. When the legal heirs are not able to decide on a person to appoint as an administrator, any one of the legal heirs of the testator can apply to the court for appointing a person as an administrator of the will.

WHAT IS CONVEYANCING?

August 21, 2024/in Blog /by legal-web-admin

A legal document is a written instrument that records and formalizes an agreement, obligation, or other legally enforceable act. It is a communication tool in the legal sphere designed to express and enforce rights, responsibilities, or procedures under the law.

Conveyancing is the branch of law which dealt with modes and forms in which the expression of intention to transfer a property must be shown in a deed, so that it takes effect. Conveyancing deals with the modes and manner in which a transfer of property should take place in order that it may serve as an effective and a valid transaction.

The word ‘conveyancing’ may be said to comprise all the transactions by which legal rights are created and legal relations between persons are brought in existence. It is generally that branch of law that governs and is related to the drafting of documents. The science of drafting is conveyancing.

In law, conveyancing is the exchange of legitimate title of the real property starting with one individual then onto the next, or the giving of an encumbrance

Conveyancing also includes conducting thorough searches and investigations to uncover any potential issues or encumbrances associated with the property. This may involve examining property records, conducting local authority searches, and checking for any legal restrictions or disputes that may affect the transaction.

What is the objective?

The object of executing an instrument is to make the terms of transfer, its subjectiveness, its position contain and express the memory of what is written and to provide a permanent proof of the intention of the parties.

It is a vital process that safeguards both parties’ interests and ensures that the transfer of ownership is legally binding.

The process ensures that the buyer acquires a valid title to the property and that the transfer of ownership is legally binding. Conveyancing is a complex process that involves several steps and parties, and it is vital to work with a reputable solicitor and estate agent to ensure that the process runs smoothly.

SALE DEED

A Sale Deed is a legal document describing the transfer of right, title and ownership of property by a seller to a purchaser at a price fully paid or to be paid in instalments at a future date. The entire amount of sale transaction also known as sale consideration is paid at the time of registration of the sale deed.

MORTGAGE DEED

A mortgage deed is a legal document that gives lender an interest in a property when you take out a loan backed by the property. If a borrower does not pay back a loan in accordance with the agreement, the lender can foreclose and take possession of the property or have it auctioned. Basically, a Mortgage Deed is a paperwork you sign that allows the lender to put lien on the property until the loan is paid.

LEASE DEED

When a property is used and enjoyed by the person in possession of it in exchange for a consideration to the actual owner, the property is said to be leased or rented. When a property is given on a lease, it means that the lessee or the tenant can use the property for a definite period of time for which he/she would be required to pay a certain fixed amount of rent. When this period extends to more than a year, a lease deed must be prepared.

GIFT DEED

A gift deed, also known as a deed of gift, is a legal document that transfers ownership of property from one person to another without monetary consideration. It’s a voluntary transfer that can be of real, personal, or intellectual property, such as real estate, vehicles, jewelry, or financial instruments. A gift deed acts as proof of the transfer and ensures that it’s legally binding.

Guide on Procedure before Sub-Registrar Office for registration of property documents

May 18, 2021/in Blog /by legal-web-admin

Process Flow diagram for Property Deed Registrar in e-Sub Registrar Offices in Delhi

STEPS FOR REGISTRATION

1. Please get your e-stamp paper of correct value prepared by visiting the nearest Stock Holding Corporation of India Ltd.(SHCIL) centre or their Authorised Collection Centre(ACC). The address of nearest SHCIL/ACCs can be checked on the website www.shcilestamp.com .

2. Please take appointment for visit to Sub-Registrar office on website of the Revenue Department (http://revenue.delhi.gov.in) or by approaching the Reception Desk/kiosk at the Sub-Registrar Office.

3. Please visit Reception at the appointed date & time alongwith your Appointment Slip/sms received in you mobile confirming the appointment/ computer generated appointment no. as reference.

4. Please obtain your Swipe Card from Reception to enter Facilitation Center. Loss of Swipe Card may result in denial of access to Sub Registrar office.

5. Please visit the Facilitation Counter in the hall when your token number is displayed on the screen.

6. Please present your documents to Facilitator. Follow strictly the suggestion of Facilitator if certain changes are required in your documents. Upon clearance by Facilitator, please wait for your turn for presentation before Sub-Registrar along with all the parties required to be present.

7. Upon acceptance by Sub-Registrar please proceed to the Biometric Division for finger printing & photographs. Collect your Receipt on completion of registration process.

8. Please exit from the Exit door using your Swipe Card. Drop the Swipe Card at designated place only.

9. Delivery of documents will be between 3 pm to 5 pm at Delivery Counter only.