Implementing "Will" in India - Step-by-Step process to Lawfully Transfer Assets of the Deceased
Author: Santosh K. Pawar, Esq.
Transferring assets of the Deceased, based on claimed "Will", is a legal process regulated by prescribed laws. Compliance is mandatory.
There is absolutely no reason or justification for risking family harmony and relationships, when legal system exists to assist claimants (of Will) as well as all other legal heirs.
All legal heirs (of the same class - surviving spouse, surviving mother, daughters, and sons) have equal share in each asset of the Deceased in India, till proven otherwise.
The claimant of "Will" must prove, prior to any transfer, that the alleged testator created and executed the claimed document in accordance with law.
The Estate of the Deceased continues to own all its assets till the claimant of "Will" proves his/her claim in court of law.
The Estate of the Deceased is operated/managed through its duly appointed Legal Representative till assets are lawfully transferred from the Estate to successors.
It is unlawful, for anyone, including the surviving spouse, to transfer any asset of the Estate of the Deceased without due process of law.
It is illegal to compel any legal heir to relinquish his/her claim against any asset of the Estate.
Let us examine what law requires every claimant of “Will” to prove prior to depriving any legal heir of his/her natural (equal) inheritance.
What is “Will”?
“Will” is not a transfer document. It is a legal document, which -
· contains a “legal declaration”;
· Is created by a “capable” person;
· exercising his/her “free Will”;
· Is signed in the presence of at least two independent witnesses;
· transferring his/her assets after his/her death; and
· Is attested by two witnesses who saw Testator sign the document.
The person making “Will” is known as “Testator”.
The document is known as “Claimed Will”.
Legal Steps to Implement Claimed "Will"
The “Claimed Will” becomes enforceable ONLY after Court of Law declares the document valid and properly executed in compliance with law.
To Implement claimed "Will", the claimant of “Will” must initiate legal proceedings. He/she must submit “claimed will”, supporting facts and evidence before the court.
Upon receipt of claimant's petition, Court notifies all legal heirs and provides them an opportunity to respond to claimant’s allegations.
Court conducts hearing and records evidence presented by all parties.
The court of law evaluates facts and evidence on record and makes judicial determination whether assets of the deceased must be transferred based on claimed “Will” or not.
Are Court Proceedings Avoidable?
Court Proceedings are avoidable ONLY under the following circumstances:
1. No Asset of the Deceased is located in Mumbai, Chennai and Kolkata;
2. The deceased, at the time of his/her death, was not a resident of Mumbai, Chennai, or Kolkata; AND
3. All legal heirs UNANIMOUSLY AGREE to settle all claims against the Estate out of court and duly execute "Relinquishment Deed" specifying that they do not require the claimant to seek court order to implement claimed "Will".
The Statutory and Regulatory Process for Creating and Executing Valid “Will”
The Statute of every nation, including India, specifies what every claimant of "Will" must prove to establish that his/he claimed document is last "Will" of the Deceased Testator. The said requirements are:
"Legal Capacity"
(Section 59 of Indian Succession Act, 1925)
The first and foremost requirement of any valid "Will" is, that the “Testator” of the claimed document had legal capacity, known as “Sound Mind” at the relevant time.
“Sound Mind” is not a medical term.
It is a legal test. Every claimant must present evidence in support of the facts that, at the relevant time, the Testator knew and understood -
a. What assets he/she owned and what rights he/she had to dispose of the same during his/her lifetime;
b. Who his/her “natural legal heirs” were, who are entitled to assets of his/her estate and in whose favor, it would have been proper that he/she should make his/her “Will; and
c. What the nature of the document and effect of its provisions were.
Exercise of "Free Will"
(Section 61 of Indian Succession Act, 1925 )
Secondly, the Testator exercised his/her own “Free Will” in creating and executing the document.
Any document obtained by fraud, coercion, or importunity, is void, as it takes away the free agency of the testator.
The evidence presented must show that the claimed document is, in fact, “Will” of the deceased. It must establish that the deceased testator knew, understood, and approved contents of the document before declaring the same as his/her last "Will" and executing the same.
Legal Declaration
(Section 2(h) of Indian Succession Act, 1925)
Thirdly, the Testator made a legal declaration that the claimed document is his/her last “Will”.
The Claimant of “Will” must present evidence that the Testator declared the document to be his/her last “Will” during the time of alleged execution of the same.
"Signing" the Claimed Document
(Section 63 of Indian Succession Act, 1925)
Fourthly, Testator executed the claimed "Will” in compliance with law.
“Will” signing is a solemn act. It is a legal ceremony, which is required to be conducted in compliance with law to validate the document.
"Will" signing is, not just a physical act, but a mental act as well.
The claimant must present evidence that the Testator signed the document in the presence of at least two independent witnesses.
Law permits the Testator to sign his/her own name in the document himself/herself, OR
Direct someone else to sign his/her name on his/her behalf.
If someone else signs the document upon authorization of the Testator, he/she must sign the document in the testator’s name and in the presence of testator and the witnesses.
“Attesting" Testator's Capacity, Competence, Legal Declaration and Signature on the Claimed Document
Fifthly, the witnesses attested the claimed document in accordance with law. Law places crucial legal responsibility on the shoulders of witnesses. The provision of Witnesses at "Will" execution ceremony has been made to assure, not only the fact that the alleged testator signed the document, but also attestation of other factors stated above.
Hence, role of witnesses is to attest to the facts that -
a. the Testator had legal capacity;
b. the Testator exercised “free will”;
c. the Testator knew and understood contents of the claimed document;
d. the Testator declared the claimed document as his/her last “Will”;
e. the Testator requested them to attest his/her competency, capability, declaration, and signature on the claimed document; and
f. The Witnesses signed the document as attesting witnesses.
The Witnesses must sign and attest the document ONLY after they witness all essential elements stated above (para a to e).
During trial, the attesting witnesses appear and testify before the court and present facts as to what they saw or heard at the “Will Signing Ceremony” to establish that the claimed document is valid and properly executed.
Simple statements, in the document and/or attestation clause, that the testator is of sound mind, declares the document as his/her last Will and signs the document voluntarily and exercising his/her “free will”, are hearsay.
It is the Court of Law, that makes judicial determination, based on facts and evidence presented –
· whether testator had legal capacity;
· exercised “free will”;
· made legal declaration;
· signed the document in accordance with law or not; and
· witnesses signed the document as attesting witnesses or not.
What if, Claimed “Testator” does not know “the Language”
Whenever, the claimed Testator does not know the language in which the claimed document is written, he/she must have had the entire document translated, word by word, by a competent translator in the language best known to him/her.
If translated, the testimony of the translator is mandatory in court of law.
The translator must certify and testify before the court that–
he/she is familiar with both languages (language of the document and language best known to the translator),
that he/she translated the document word for word to the testator, and
that the testator stated to him/her that he/she understood contents of the document, prior to signing.
What if, the Document is claimed to have been prepared by Some Legal Professional or Document Preparer
Whenever, claimant alleges that “Will” was prepared by some legal professional or Document Preparer, preparer of the document must testify before the court.
The document preparer, whether it is lawyer, document preparer, or any typist, must testify and present evidence before the court, that –
a. Testator asked him/her to prepare the document;
b. Testator gave his/her estate plan instructions to him/her to prepare the document;
c. The Preparer created the document ONLY as per instructions received by him/her from the Testator;
d. The Preparer provided draft of the document to the Testator;
e. The testator read, understood, and approved contents of the document prepared by the Preparer;
f. The testator declared that the document (created by the Preparer), accurately stated his/her intent and desire concerning his/her “Will”, and nothing has been left out; and
g. The document presented in court is the same document, that he/she prepared, and the Testator approved.
Testimony of preparer of the document is mandatory.
Safe Custody
Lastly, the claimant must present evidence that the claimed document remained in safe custody after alleged execution of the same.
Who May Initiate Legal Action?
Any legal heir of the deceased may initiate the action. He/she may seek determination of his/her rights in the Estate of the Deceased, appointing legal representative of the Estate of the Deceased as well as partitioning his/her share from the Estate of the Deceased.
Conclusion
To conclude, transfer of assets of the Estate of the Deceased, with or without “claimed will”, is a simple legal process. It must be undertaken under supervision and assistance of legal professionals specializing in the field of Estate Administration and property transfer.
Legal system exists to assist and supervise compliance of law.
It is strongly recommended that legal heirs, must seek timely assistance, should not hesitate in seeking judicial intervention and submit disputed issues before the courts for judicial determination.
Let us follow the right legal path, take appropriate actions, and preserve peace and harmony in the families.
Author: Santosh K. Pawar is managing attorney of Law Firm of Santosh K. Pawar. She is licensed to practice in India and U.S. She specializes NRI property matters and inheritance issues, besides US Immigration. For more information and assistance, contact by email at santosh@attorneypawar.com, call at (585) 264-1649 or WhatsApp at (585) 474-0935.
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