“Will” is not a property transfer document. It is just a legal declaration of intentions of the deceased for disposition of his/her assets after his death, which requires judicial determination to have any binding force. Whether the deceased executed legal, valid and proper legal instrument is a question of law. Its the Courts alone, that have jurisdiction to declare whether the deceased died “Intestate” (without Will), or “Testate” (without “Will”). No claimant is permitted by law to transfer any asset of the deceased to himself/herself or to any third party till he/she is in possession of judicial determination of claimed "Will".
The following information is about inheritance rights of legal heirs and legal avenues available to exert the same.
Inheritance transfer, whether based on a legal document (“Will”) or law of nature, is a set legal process, governed by codified laws. Non-compliance of the same have serious civil and criminal implications.
Transfer based on legal document, i.e., “Will”, is known as “Testamentary Succession”, whereas, natural succession (unwilled or without “Will”) is called “Non-Testamentary Succession”.
In India, the Hindu Succession Act, 1956, as amended, lays down inheritance and succession laws for Hindus, Buddhists, Jains, and Sikhs. All legal heirs inherit assets of the deceased jointly in equal shares with right to seek partition of his/her share at any time, unless proven otherwise.
The Indian Succession Act, 1925, under section 59, 61, and 63 of the Act are the governing statutes defining testamentary capacities to make a “Will”, elements of a valid “Will”, and rules for proper execution of a valid “Will”. Section 68 of The Indian Evidence Act makes any document (required to be attested) inadmissible without proper hearing and recording of testimony of at least one attesting witness.
Whether the deceased died intestate or testate, is a question of law which requires judicial determination by court of competent jurisdiction. Legal heirs do have an option to relinquish their claims but have no authority to make legal determination regarding legality, validity and proper execution of the claimed document.
PROCEEDINGS FOR JUDICIAL DETERMINATION -
WHETHER DECEASED DIED INTESTATE OR TESTATE
A. PROCEEDINGS FOR PROBATE/LETTER OF ADMINISTRATION
The issue, whether deceased died intestate or testate, may be determined in any court proceedings where claim/ownership of asset is under judicial scrutiny.
The most common proceedings are proceedings seeking grant of “Probate”/”Letter of Administration”, which are initiated by the executor for grant of probate of the claimed “Will” or any legal heir or interested party for grant of “Letter of Administration”.
The court, after giving notice to all legal heirs, requiring them to submit objections to claimed “Will”, if any, examines the document, conducts hearing, records testimony of attesting and other witnesses to claimed “Will”, and makes judicial determination regarding legality, validity and proper execution of claimed “Will”. At the same time, the court appoints executor/administrator to administer the estate and transfer assets under court supervision.
B. SUIT FOR DECLARATION, PARTITION & RENDITION OF ACCOUNTS
Section 57 of Indian Succession Act makes “Probate” optional.
As Probate of claimed “Will” is not mandatory in India, except in Bengal, Madras and Bombay, legal heirs often confront situation where claimant of “Will” refuses to file proceedings seeking Probate or Letter of Administration, and wrongfully and illegally compels other legal heirs to relinquish their claims in the estate without determination by court whether his/her claimed “Will” is legal, valid and properly executed, entitling him/her to deprive other legal heirs of their rightful inheritance share in the estate of the deceased.
Legal heir(s) has a right to refuse to relinquish his/her inheritance share, require claimant to establish the same in the court of law, and/or initiate proceedings seeking judicial declaration of his/her right int the estate, Partition of his/her share, Rendition of Accounts for all assets owned by the deceased on the date of his/her death, and an injunction against claimant preventing him/her to transfer the assets of the deceased to themselves or to any third-party.
The court shall, after conducting proper hearing, examining claimed “Will”, hearing testimony of attesting and other witnesses, make judicial determination whether the deceased died intestate or testate.
BURDEN OF PROVING CLAIMED “WILL” IS UPON CLAIMANT/PROPONDER
The deceased is presumed to have died intestate, unless proven otherwise.
The burden of proof to establish claimed “Will” is upon the claimant/propounder of “Will”.
The propounder of “Will” must show to court by satisfactory evidence that:
the testator placed his/her signatures on the document of his/her own freewill, without any force, coercion or undue influence, with intent to give effect to the writing as a “Will”;
Inheritance is an equal right of all legal heirs acquired due to biological or marital relationship with the deceased. The statutory laws have made provisions to protect legal heirs against illegal and wrongful deprivation of their inheritance rights. There is a strong need to exert those rights and claim rightful shares in ancestral assets.
Inheritance Transfer requires review of legal documents and application of prescribed laws. All legal heirs, NRI’s and Resident Indians alike, are advised to seek independent professional legal counseling, assistance and representation before executing and registering affidavits of “No Objection” to claimed “Will” and/or relinquishing their rightful share of inheritance due to societal pressure or non-availability of required information.
Author: Santosh K. Pawar is managing attorney of Law Firm of Santosh K. Pawar. She is licensed to practice in India and U.S. Her expertise includes consulting on property and transfer of inherited assets in India. For more information and assistance, contact by email at email@example.com, call at (585) 264-1649 or WhatsApp at (585) 474-0935.