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WILL AND POWER OF

ATTORNEY


2014
PFP GROUP ASSIGNMENT
BY: - ISHAAN, RAHUL, SAURABH, SANJANA & VINAY.



WILL

A Will is that legal instrument containing the declaration of a persons intention on how his
property is to be managed and/or disposed off after his death. The person for whom this legally
valid Will is made is called the testator. A Will does not involve any transfer, nor affect any transfer
inter-vivos (from one living person to another), but it is a document in which a person specifies
the person (executor) as well as the method to be applied in the management and distribution of
his estate after his or her death. A Will therefore come into effect only after the death of the testator
and can be revoked by the testator alone, until such a time that he is legally competent to dispose
of his property.
Statutory Definition of Will:

The term Will is defined under Section: 2(h) of The Indian Succession Act, 1925, means the
legal declaration of the intention of a testator with respect to his property which he desires to be
carried into effect after his death. A testator is authorized with a power to appoint any person as
beneficiary of his Will whereas Section: 5 deals with the law regulating succession to deceased
persons moveable and immovable property

10 Important Characteristics of a Valid Will:

1. The person executing the Will is called the testator.
2. The testator appoints one or more executor to act on the intentions of the testator as is set
out in the Will. The executor might not necessarily be one of the legatees or beneficiaries
of the Will.
3. The Will clearly stipulates legatee or the beneficiary of the Will.
4. Unlike gifts, a Will comes into operation only after the death of the testator.


5. A Will must be signed and attested.
6. A Will can be revoked by the testator at any time during his lifetime as long as he or she is
competent enough to make a decision.
7. With the execution of any subsequent Will the previously executed Will stands
automatically cancelled.
8. Any additions or alterations in the Will can be made by executing a codicil.
9. Under the Indian law an instrument of Will need not be registered. However after the death
of the testator, to make the Will operative a probate issued from a court of competent
jurisdiction needs to be acquired.
10. The intension of the testator must be to execute a Will.
Types of Wills:

Privileged Wills: A Privileged Will (Section 63 of the Indian Succession Act) is one which is
made by any soldier, airman or navy persons who is willing to dispose of his or her estate during
the course of his or her employment. This could refer to an expedition, engagement in actual
warfare or a mariner being at sea. A soldier does not include a civilian engineer employed by the
army who has no military status. A soldier while making an instrument of Will has to be a major
not a minor, with the legal definition of major being a person who is above the age of 18 years.
Features and Privileges Assigned to a Privileged Will:
1. A Will written wholly by hand of the testator need not be signed and/or attested.
2. If written wholly or in part by any person other than the testator it must be signed by the
testator but need not attested.
3. In case the Will has been written by any other person and it has not been signed by the
testator, it has to be proved that the Will was written on the testators direction or was
recognized by him as his Will.
4. An incomplete Will can nevertheless be deemed to be valid if some cause other than the
abandonment of the testamentary intentions expressed in the instrument.


5. If the testator has given instructions for preparing a Will but has died before the Will could
be prepared and executed, then such instructions are to be considered to constitute his Will,
although they may not have been put into writing in his presence, nor read over to him.
6. Where a Will is made by the testator by word of mouth, declaring his intention before two
witnesses present at the same time, such a Will shall become null and void at the expiration
of one month after the testator, being still alive, has ceased to be entitled to make a
Privileged Will.

Unprivileged Will: An Unprivileged Will (Section 66 of the Indian Succession Act) is one
which is created by any testator who is not employed as a soldier, airman or mariner. The testator
of an Unprivileged Will is bound by the general requirements of a valid Will.

Conditional or Contingent Wills: A Will expressed to take effect in the happening or not
happening of some event is called a Contingent Will. A Conditional Will is based on certain
conditions and if these conditions become contrary to law, then the Will is not legally enforceable.
As a result, person A executes a Will to be operative for a particular year, i.e., if he dies within
that year and A does not die that year. The Will becomes inoperative since A has not expressed
an intention that the Will survives even intestate.

Joint Wills: A Joint Will is a testamentary instrument whereby two or more persons agree to
make a conjoint Will. It is intended to take effect after the death of both or more of the persons
who drew up the conjoint Will and is not enforceable during the life time of either. A Will executed
by two or more testators as a single document duly executed by each testator disposing of his
separate properties or his joint properties is a single Will. It operates on the death of each and is in
effect for two or more Wills. On the death of each testator, the legatee would become entitled to
the properties of the testator who dies.



Mutual Wills: A Will is mutual when two testators confer upon each other reciprocal benefits
constituting the other his legatee. In the event the legatees are distinct from the testators, the Will
is not mutual.

Duplicate Wills: When a testator makes a Will in duplicate, for the sake of safety, one to be
kept by him and the other to be deposited in the safe custody with a bank or executor or trustee it
is referred to as a Duplicate Will. If the testator destroys or damages the Will that is with him, it is
considered a revocation of both Wills.

Concurrent Wills: In the event the testator disposes of some of his properties in one country
by one Will and the other properties in another country by a separate Will these are regarded as
Concurrent Wills. In such cases both the Wills are regarded as valid irrespective of the last Will
theory.
Sham Wills: Since the intention of the testator is regarded as one of the essential condition of a
valid Will, if a document is deliberately executed with all due formalities purporting to be a Will,
but if it can be shown that the instrument was executed for some collateral object without any
intention of the testator to make it operative, the Will is regarded as a sham Will. It is considered
as invalid in the eye of law.

Holograph Wills: Wills which are written entirely by the hand of the testator are called
Holograph Wills.

Who Can Make Will:

Every person who is competent to contract may make a will but he must be major, sound mind and
willing to write a Will. Any person who is the sole owner of a self-acquired property can bequeath
by way of will. A person of unsound mind can also make a will but only in lucid intervals. A Will


cannot be made by some persons i.e. minors, insolvent, persons disqualified under any law by the
court. A Will executed by a minor is void and inoperative though a testamentary guardian can be
appointed for the minor to dispose off the property. A Will can be made by the deaf and dumb
person by showing consent through writing or gestures in sign language. Nothing prevents a
prisoner or alien in India from drawing a Will.
For Whom The Will Can Be Made:

Any person capable of holding property can be a legatee under a will and therefore a minor, lunatic,
a corporation, a Hindu deity and other juristic person can be a legatee. Sections 112 to 117 of
Indian Succession Act, 1925 put some restrictions on the disposition of property by will in certain
cases. Dispositions of property by will in some cases have been declared void. If the minor person
has been named as legatee by a testator then a guardian should be appointed by the testator himself
to manage the bequeathed property.
What Can Be Bequeath In A Will:

Any movable or immovable property can be disposed off by a will by its owner, that property must
be a self-acquired property of that person and it should not be an ancestral property of the testator.
According to Section: 30 of Hindu Succession Act, 1956 provides that any Hindu may dispose
off by will or other testamentary disposition any property, which is capable of being so, disposed
of by him in accordance with law.

General Procedure To Make A Will:

A Will should be prepared with utmost care and must contain several parts to make a complete
Will though there is no defined format for making a Will but a general procedure should be adopted
while writing a Will by the testator which includes:

1. Declaration In The Beginning: In the first paragraph, person who is making a Will, has
to declare that he is making this Will in his full senses and free from any kind of pressure and


undue influence and he has to clearly mention his full name, address, age, etc at the time of writing
the Will so that it confirms that a person really wishes to write a Will.
2. Details of Property and Documents: The next step is to provide list of items and their
current values, like house, land, bank fixed deposits, postal investments, mutual funds, share
certificates owned by testator. He must also state the place where he has kept all the documents if
the will documents are under safe custody of the bank then testator has to write details about the
releasing of the Will from the bank. Here it is the most important duty of the testator to
communicate the above matter to the executor of the Will or any other family members, which
will make the Will valid after testator death.
3. Details of ownership By The Testator: A testator while making a original Will should
specifically mention that who should own his entire property or assets so that it will not affect the
interest of the successors after his death. If testator wishes the name of the minor as beneficiary
then a custodian of the property should be appointed to manage the property.
4. Attestation of the Will : At the end, once the testator complete writing his Will, he must
sign the will very carefully in presence of at least two independent witnesses, who have to sign
after his signature, certifying that the testator has signed the Will in their presence. The date and
place also must be indicated clearly at the bottom of the Will. It is not necessary that a person
should sign all the pages of the Will instrument but he must sign to avoid any legal disturbances.
5. Execution of A Will: On the death of the testator, an executor of the Will or an heir of the
deceased testator can apply for probate. The court will ask the other heirs of the deceased if they
have any objections to the Will. If there are no objections, the court will grant probate .A probate
is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the
genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be
served, calling upon them to consent. This has to be displayed prominently in the court. Thereafter,
if no objection is received, the probate will be granted and It is only after that Will comes into
effect.



Revocation of Wills:
A Will is liable to be revoked or altered by the maker of it at any time when he is competent to
dispose of his property by Will. A Will can be revoked by testator of the Will at any point of time
which can be classified into two aspects such as:-

Voluntary Revocation: A testator who wishes to revoke his original Will which is made by
him on a specified date and time, he can make revocation of the will himself by writing a
subsequent Will or codicil duly executed and by destruction of the previous will, means by
burning, tearing, destroying or striking out the signature of the original instrument of a Will.

Involuntary Revocation: According to the Section: 69 of the Indian Succession Act, 1925
which deals with revocation of will by the testators marriage, however this provision does not
apply to Hindus. Section 57 of the Indian Succession Act clearly states that a testators marriage
will not make the Will invalid.



POWER OF ATTORNEY
Introduction:

In the modern world where commerce and industry have assured large and long roles to play , the
need for entering into contracts of agreements in relation to business and other transactions have
become a common and necessary feature of daily life. As man became busier it became more and
more necessary for him to depend on others for getting his things done. The hectic activities of the
businessmen and industrialists have made the execution of power of attorney for delegating his
functions. Granting a Power of Attorney is a legal process that involves the drafting of a document
which assigns to another person the power to act as your legal representative. Principal should be
careful while authorizing an agent as attorney to avoid inconvenience and expense of any legal
proceedings in the future.

The Statute:

This act may be called as POWER OF ATTORNEY ACT, 1882, which was passed in the year
1882 on 24th Feb and the act came into force on first day of May, 1882. This act applies to the
whole of India except State of Jammu & Kashmir. The main aim of passing this statute is to make
it easy for your designated attorney to access your finances and, in that way, take care of your
property.

Definition:
According to the Section: 1A of POWER OF ATTORNEY ACT, 1882, A Power Of
Attorney includes any instruments empowering a specified person to act for and in the name of
the person executing it.


Meaning:

The term Power Of Attorney is an authority given by an instrument by one person, called as the
donor or principal, authorising another person, called donee or agent to act on his behalf. There
may be possibility of giving Power Of Attorney by two or more persons jointly to one or more
persons. Here a legal authority is given by the principal to the agent which may be broad or limited
and an agent can take all necessary decisions i.e. financial, property related matters and all other
matters where principal cannot be present to sign or in the case of principals illness and disability.
A paper signed by principal giving powers to an agent is sometimes itself called a power of
attorney. A paper giving a power of attorney should be clear and understandable.
Importance of Power of Attorney:

A power of attorney document is an extremely important part of estate planning yet one of the
most misunderstood. It is often convenient or even necessary to have someone else act for you as
there is advancement in the business and commerce transactions. As many people confuse the
power of attorney (POA) with a will (Probate), but these documents are two very different things
and have two very different functions. A will comes into effect on the day person die. A POA
applies during a persons lifetime and ceases to apply when he dies. So you actually need both a
POA and a will as they complement, and do not overlap, each other. To add a twist to the subject,
there are two types of POA: one for property and one for personal care. These two types are
completely separate. They deal with different areas of your life and both are required for effective
estate planning.
Classification of Attorney:

The Power of Attorney can be classified into two categories which includes:
I. General Power of Attorney: A general power of attorney is one by which an instrument is
executed by the principal authorizing the agent to do certain acts in general on his behalf. The


word General here means that the power must be general regarding the subject matter and not
general with regard to powers in respect of a subject matter. If the subject matter is not general but
restricted to something either specific or specifically mentioned by the principal while drafting an
instrument then it will not constitute a general power of attorney. It is otherwise called as limited
power of attorney.
II. Special Power of Attorney: A special power of attorney is one by which a person is
appointed by the principal to do some specified act or acts. In this type of power of attorney, an
agent conferred with a power to do specific act in a single or specified transactions in the name of
the principal.
III. Durable Power of Attorney: A Power of Attorney which specifically says otherwise,
agents power ends if principal become mentally incapacitated. However, a power of attorney may
say that it is to remain in effect in the event of future incapacity of the principal. A power of
attorney that says this is called a durable power of attorney.
To ascertain whether power of attorney is of general or special in nature, the subject matter in
respect of which power is conferred Is to be seen accurately. The power of attorney is the unilateral
document wherein donor or the principal gives authoritative power to the agent by signing the
document and the agents sign is not always required.
Persons Competent To Execute:

A power of attorney can be executed by any person who is competent to enter into a contract.
However, the married women can execute powers of attorney even if they are minors. A company
while executing power of attorney must make conformity with the Articles of Association and
its common seal. A person must be competent to give power to the appointed person so that it will
not affect the legality of the instrument/deed of power of attorney.
Authentication of power of Attorney:
As per Indian law, a power of attorney is a legal document that has to be properly framed, using
the right legal terminology and setting out the objectives and responsibilities that you wish to


authorize the appointee to carry out on your behalf. If a person wants to authorize someone to act
as a power of attorney on his behalf, it must be signed and notarized by a certified notary advocate,
who is able to declare that you are competent at the time of signing the document to issue the said
power of attorney. You will need to show your ID to the notary advocate before he/she is able to
certify and issue the document. It must be executed and authenticated by the registrar or sub-
registrar of assurances as per the Registration Act, 1908.
Presumption About Power of Attorney:

A power of attorney is legal written document which has more legal value and the authenticated
attorney will be presumed by the court as legal document under Indian Evidence Act, 1872.
According to the Section: 85 of Indian Evidence Act, 1872, which provides that the court shall
presume that every document purporting to be a power of attorney, and has to be clearly
authenticate and executed before the notary or magistrate. If there is any issue arises concerning
to the genuineness of the attorney then proof of its execution can be called for the verification.
Language of The Power of Attorney:

An instrument of power of attorney must always use the language known to the donor and if the
donor is an illiterate person then scribe and identifier should explain all the contents of the
document in the language known by the donor and it has to be certified by the donor that he has
understood all the contents and then he has to put thumb mark on the document. Lastly the
administrative officer will take the oath from the donor stating that he knows all the contents of
the document and he knows the identifier. A sign and seal must be put by the administrative officer
after complete verification of the document.
Original Documents To Be Verified:
A power of attorney which is accurately authenticated by the notary or any magistrate, an affidavit
has to be filed with all the original documents of the power of attorney authorising an agent to do


certain acts. All the documents will be verified by the court and then court will register power of
attorney by putting seal and sign. It is very much essential to make the power of attorney valid.
Powers of Attorney by Two or More Persons:

A power of attorney may be executed by two or more persons jointly in favour of one or more
persons and when there are several persons as attorneys a complete authorisation in letter to be
given by one of them for acting severally. A clause should be included while drafting the deed of
power of attorney that all the attorneys should act jointly or separately.
Duration of Granted Power:

A general power of attorney remains in force unless expressly revoked or determined by the death
of either of the party. A special power of attorney will be in force until the specified act is not
completed. Duration of the power will depend upon the type of the attorney or there may be a fixed
period of power granted by the principal which must be included in the deed.
Revocation of Power of Attorney:

A power of attorney may be revoked at any time by the principal or donor by giving a written
notice to the agent, unless it is for a particular fixed period. Revocation usually possible when
principal dies or becomes insane or becomes bankrupt. The principal himself can revoke power of
attorney if the business for which the agent was appointed is over as mutually agreed upon by the
principal and agent. In case if principal has named a spouse or registered domestic partner as his
agent, his or her authority to act under the power of attorney is automatically terminated in the
event of divorce, legal separation or termination of the registered domestic partnership.


Registration:

A power of attorney is not compulsorily registrable unless it creates an interest in any immovable
property i.e. charge in favour of donee. Registration of power of attorney is optional In India,
where the Registration Act, 1908, is in force, the Power of Attorney should be authenticated by
a Sub-Registrar only, otherwise it must be properly notarized by the notary especially where in
case power to sell land is granted to the agent. If a power of attorney is in respect of an immovable
property of value more than Rs100 it must be registered. Registration of power of attorney
authenticates the deed of power of attorney.
Stamp Duty:

A power of attorney is chargeable under Section: 48 of Schedule 1 of the Indian Stamp Act, 1899.
A stamp duty has to be paid compulsorily by the principal or donor in the jurisdictional registrars
office.
Legal Powers Which Can Be Granted To The Attorney:

Broadly speaking a power of attorney provides an agent all powers that the principal has to
manage the principals financial affairs or make health care decisions may be enough for many
purposes. An agent may be authorized to:

a) To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders.
b) To manage, compromise, settle, and adjust all matters pertaining to real estate.
c) To lease, collect rents, grant, bargain, sell, or borrow and mortgage.
d) To sell any and all shares of stocks, bonds, or other securities.
e) To file, sign all tax returns, insurance forms and any other documents.
f) To enter into contacts, and to perform any contract, agreement, writing, or thing to make,
sign, execute, and deliver, acknowledge any contract, agreement.


g) To make health-care decisions for the donor or his minor children.
h) To sue on behalf of the principal.
Qualifications of An Attorney:

It is the duty of the Principal to appoint a responsible person as agent who should act with utmost
good faith. An attorney is a person who has been appointed by the donor to act on his behalf. An
ideal attorney is that who must be willing to act in that capacity and he has to be impartial having
integrity. An attorney should be loyal to the donor and should not disclose any confidential matters
related to the business.
Duties of The Attorney Holder:

An attorney holder is a person who is authorized by donor legally. An attorney must not exceed
the authority given under the power of attorney. If the attorney does exceed their authority, he or
she may be liable for any damages suffered by the donor or others. The attorney may, however, do
all those acts which are authorized, but only by a particular method, if the power of attorney so
indicates. If there is a breach of any condition by the attorney then he shall be liable to the donor
except in a case where he has acted reasonably. If there is some doubt as to the wording of the
power of attorney, a solicitor should always be consulted. The attorney holder must also act
towards the donor with the utmost good faith and tell the donor the nature and extent of any interest
which may conflict with his or her duty. An attorney may pass on his or her powers and duties to
another person but only if authorized to do so by the power of attorney

Conclusion

A power of attorney is very essential legal document which can be admitted as a evidence in the
court of law whenever there is any breach of trust by the attorney holder. Its therefore essential


that principal has great confidence in his designated attorney. An agents must be someone
principal can trust, without reservation, to use his property for him and not for themselves, or
anyone else.