Will

What is a Will

Will is a legal declaration of the intention of a testator with respect to his property,
which he desires to be carried into effect after his death. It includes codicil and every
writing making a voluntary posthumous disposition of property. It is testamentary
instrument by which a person makes disposition of his property to take effect after his
death, and which, in its own nature, is ambulatory (personal) and revocable during his
life. Thus, a Will can be changed by the executant as and when he so likes. It is a secret
and confidential document which the executant is never ordered to produce.

There are two essential characteristics of a Will:-

(i) It must be intended to come into effect after the death of the testator; and

(ii) It must be revocable by the testator at any time. Although Wills are usually made
for disposing property, they can also be made for

(a) appointing executors,

(b) for creating trusts and
(c) For appointing testamentary guardians of minor children.

In one case, the Andhra Pradesh High Court has held that contents of the Will must
indicate that it is intended to come into effect after death of testator and that it is
revocable at any time prior to his death and a document cannot be treated as a Will by a
mere reading of heading of it.

A gift to take effect the life lime of the donor is a deed of settlement and not a
Will. Section 63 of the Indian Succession Act, 1925 provides that 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.

When a person dies without having made a Will, he is said to have died intestate.
His property is then inherited by his legal heirs in accordance with the law of inheritance
applicable to him. It must be noted here that legal heirs generally include close family
members such as one's spouse, children, parents, brothers and sisters. If one does not
make a Will, then his property will be inherited by legal heirs in accordance with the
laws of inheritance applicable to him. However, most of the people would like to dispose

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of their property according to their own wishes. Thus, there arises the need for making
one's Will.

Apart from it there are certain distinct advantages of making a Will.

1. When a person dies without having made a Will, there is often confusion amongst
the family members and relatives as to whether the deceased did make any Will prior to
his death or not, but if a Will is available, the only question that needs to be ascertained
is whether it is the last Will of the testator.

2. A Will be absolutely personal document. More than anything it is an expression of

the relationship with the members of family or relatives, etc. The views, opinions and
feelings, etc., are indicated in this document. A Will allows the devolution of property in
a personalized manner rather than letting the impersonal rules of inheritance take effect.

3. Many disputes can be resolved at the very outset if there is a clear disposition
of one's property in a Will. It will not be out of place to mention the imbroglio of Late
Mrs. Indira Gandhi and her daughter in- law, Menka Gandhi, who were embroiled in a
litigation concerning the assets of the late Sanjay Gandhi. Had Sanjay Gandhi left
behind a Will, the possibility of any dispute surfacing between the mother and his wife
would have been very remote.

4. By means of a Will, one can appoint in writing, a testamentary guardian for his
infant children. A testamentary guardian is person, who is appointed by a testament or
a Will. This point needs further clarification. In the event of the death of a parent the law
would ordinarily uphold the right of surviving natural parent to be the guardian of the
child. However, if there is no surviving parent, the law attaches great importance to the
Will of a parent in deciding who to appoint as a guardian. This is a matter of great
importance with regard to the future of the children and therefore, this issue must be
discussed in details with the proposed guardian before appointing him testamentary
guardian.

5. A Will provides more room inter se the laws of inheritance, which sometimes
do not cater to the special needs and requirements of the members of a family.
For instance, a father has two sons. One is healthy but the other is handicapped due to
any chronic disease since childhood. The laws of inheritance would treat both these
children on an equal footing. But by means of a Will one can have somewhat greater
provision for a handicapped son, a widowed daughter or an invalid parent. Not only that
by means of a Will, one can make some provision for a faithful servant, a nurse a friend

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in need of money, and so on. All such people could never receive any benefit
whatsoever under the laws of inheritance in the absence of a Will.

6. In the absence of a Will even the most unwanted son, who had left the house
for disobedience, fraud, violence, etc. may turn up to claim his share of estate
from his father's property. Similarly, an adulterous wife might demand her share as
per inheritance laws.

There are however, some disadvantages also in making a Will and they are
mostly psychological. In many cases it has been observed that people lose all
their interests in life and idem such before the time they would have lived.

If there is no Will, the property would be dealt with as per the laws of inheritance. For
Hindus, Buddhists, Jains and Sikhs the laws of inheritance have been codified in the
Hindu Succession Act, 1956. For Christians the Indian Succession Act, 1925 will be
applicable. Parsis have a different law of inheritance. Similarly, Muslims have their own
law. That has, however, not been codified in nay legislation but is based on their
religious texts. There are two major sects of Muslims - Shias and Sunnis. Both of them
have different laws of inheritance.

Types of Wills

No Need to mention here that Wills are always effective after death, never in the life
time of the testator. Section 63 of the Indian Succession Act, 1925 provides that 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, Therefore, the essential characteristic of a Will is its
revocability.

(i) Privileged and Unprivileged Wills

Wills executed according to the provisions of section 63 of the Indian Succession

Act are called Unprivileged Wills

and

Wills executed under section 66 of the Act, by a soldier employed in an expedition or

engaged in actual warfare, or by an airman so employed or engaged, or by mariner
being at sea, are called Privileged Wills. It is provided in the Act that such a Will may
be written wholly by the testator with his own hands and, in such a case, it need not be
signed or attested; or it may be written wholly or in part by another person, in which

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case, it may be signed by the testator but need not be attested. If, however, an
instrument purporting to be a Will is written wholly or in part by another person and is
not signed by the testator, it shall be deemed to be his Will, if it is shown that it was
written by the testator's directions or was recognised by him as him Will. if, on the face
of it, the instrument appears to be incomplete, it shall nevertheless, be demand to be
the Will of the testator, provided the fact that it was not completed, can be attributed to
some cause other than the abandonment of the testamentary intentions expressed in
the instrument. Further, if such a soldier, airman or mariner has written
instructions for the preparation of his Will, but has not died before it could be
prepared and executed, the instructions shall be deemed to be his Will; and if such
a person has, in the presence of two witnesses, given verbal instructions for the
preparation of his Will, and such instructions have been reduced to writing in his
lifetime, but he 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
reduced into writing in his presence, nor read over to him. It is also provided that such a
soldier, airman or mariner may make a Will by word of mouth by declaring his intention
before two witnesses present at the same time, but such a Will shall become null at the
expiration of one month after the testator, being still alive, has ceased to be entitled to
make a privileged Will.

An unprivileged Will like Codicil can be revoked by the testator only by another
Will or by some writing declaring an intention to revoke the same and executed in
the manner in which an unprivileged Will can be executed under the Act or by
burning, tearing or destroying of the same by the testator or by some other
person in his presence and by his directions with the intention of revoking the
same.

Note: Mere loss of a Will does not operate as a revocation but where a Will is destroyed
by the testator or with his privacy or approbation, it is to be deemed to have been
revoked.

No obliteration, interlineations or other alternation made in any unprivileged Will

after the execution thereof, can have any effect except so far as the words or
meaning of the Will have been thereby rendered illegible or undiscernible, unless
such alteration has been executed in the same manner as is required for the
execution of the Will; but a Will, as so altered, shall be deemed to be duly executed if
the signature of the testator and the subscription of the witnesses is made in the margin
or some other part of the Will opposite or near to such alternation, or at the foot or end
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or opposite to a memorandum referring to such alteration, and written at the and or
some other part of the Will.

A privileged Will or Codicil may be revoked by the testator by an unprivileged Will

or codicil, or buy any act expressing an intention to revoke it and accompanied
by such formalities as would be sufficient to give validity to a privileged Will, or
by the burning, tearing or otherwise destroying the same by the testator or by
some person in his presence and by his direction with the intention of revoking
the same. In such cases, it is not necessary that the testator should, at the time of
doing the act which has the effect of revocation of the Will or Codicil, be in a situation
which entitles him to make a privileged Will.

Every Will is revoked by the marriage of the maker, except a Will made in exercise of a
power of appointment, when the property over which the power of appointment is
exercised, would not, in default of such appointment, pass to his or her executor or
administrator, or to the person entitled in case of intestacy.

This rule as to revocation of a Will by marriage, does not, however, apply to Wills
and codicils executed by Hindus, Buddhists, Sikhs or Jains.

An unprivileged Will which has once been validly revoked cannot be revived
otherwise than by the re- execution thereon with the prescribed formalities, or by
a codicil executed with such formalities and showing an intention to revive the
same. When a Will or a codicil, which has been partly revoked and afterwards wholly
revoked, such revival cannot extend to so much thereof as has been revoked before the
revocation of the whole thereof, unless and intention to the contrary is shown by the Will
or codicil.

It has already been stated that in the case of Hindus, Buddhists, Sikhs and Jains a Will
could validly be made orally and no formalities for the execution of a Will are required.
This rule, however, did not apply to Wills made by Hindu, Buddhists, Sikhs or Jains, on
or after the 1st of September, 1870, within the territories which were subject to the
Provincial Government of Bengal or in the local limits of the ordinary civil jurisdiction of
the High Courts of Judicature at Madras and Bombay, and also, to all such Wills and
codicils made outside those territories or limits so far as they related to immovable
property situated within these territories or limits. The execution of such Wills was
previously regulated by the Hindu Wills Act (XXI of 1870). Except in the cases
mentioned in that Act, oral Wills could be made by person's professing the Hindu,

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Buddhist, Sikh and Jain religions. A question, however, arises whether the Indian
Succession Act, 1925 has the effect of depriving such persons of the privilege of making
oral Wills, or whether the previsions of section 63 of the Act do not merely provide for
the formalities which must be observed, if any of such persons chooses to 'execute' a
Will, i.e., chooses to reduce his testamentary dispositions to writing. It will be observed
that section 63 of the Act provides for the manner of 'execution' of unprivileged Wills, it
does not deal with the question of the 'making' of such Wills.

That the Act seems to make a distinction between the 'execution' and the 'making' of
Wills, will appear from a comparison of the phraseology of sections 63 and 66 of the
Indian Succession Act, 1925. While section 63 refers to the 'execution' of
unprivileged Wills, section 66 prescribes the 'mode of making' and rules for
executing Privileged Wills'. A distinction, therefore, seems to be contemplate
between the 'execution' and the 'making' of a Will. The former expression
apparently applies to cases where the Will is to be reduced to writing, and the
expression 'making of a Will' includes the execution of a Will and also an oral
declaration by the testator of his testamentary disposition of his estate, if such
declaration legally amounts to a Will. The matter is a debatable one, and no definite
opinion, therefore, need be expressed on it at this stage.

(ii) Conditional or Contingent Wills

A Will may be expressed to take effect only in the event of the happening of some
contingency or condition, and if the contingency does not happen or the condition
fails, the Will will not be legally enforceable. Accordingly, where A executes a Will to be
operative for a particular year, i.e. if he dies within that year. A lives for more years,
after that years. Since A does not express an intention that the Will be subsisting even
intestate. A Conditional Will is invalid if the condition imposed is invalid or
contrary to law.

(iii) Joint Wills

A Joint Will is a testamentary instrument whereby two or more persons agree to

make a conjoint Will. Where a Will is joint and is intended to take effect after the death
of both, it will not be enforceable during the life- time of either. Joint Wills are
revocable at anytime by either of the testators during their joint lives, or after the
death of one, by the survivor.

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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 not a single Will. It
operates on the death of each and is in effect for tow or more Wills. On the death of
each testator, the legatee would become entitled to the properties of the testator who
dies.

(iv) Mutual Wills

A Will is mutual when two testators confer upon each other reciprocal benefits by either
of them constituting the other his legatee. But when the legatees are distinct from the
testators, there can be no position for Mutual Wills.

(v) Duplicate Wills

A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him
and the other to be deposited in the safe custody with a bank or executor or trustee. If
the testator mutilates or destroys the one which is in his custody it is revocation of both.

(vi) Concurrent Wills

Generally, a man should leave only one Will at the time of his death. However, for the
sake of convenience a testator may dispose of some properties in one country by one
Will and the other properties in another country by a separate will.

(vii) Sham Wills

If a document is deliberately executed with all due formalities purporting to be a Will, it

will still be nullity if it can be shown that the testator did not intend it to have nay
testamentary operation, but was to have only some collaterally object. one thing must
be borne in mind that the intention to make the Will is essential to the validity of a Will.

(viii) Holograph Wills

Such Wills are written entirely in the handwriting of the testator.

Why it is important to make a will

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It is important for you to make a will whether or not you consider you have many
possessions or much money. It is important to make a will because:-

if you die without a will, there are certain rules which dictate how the money,
property or possessions should be allocated. This may not be the way that you would
have wished your money and possessions to be distributed.

Unmarried partners and partners who have not registered a civil partnership cannot
inherit from each other unless there is a will, so the death of one partner may create
serious financial problems for the remaining partner

If you have children, you will need to make a will so that arrangements for the
children can be made if either one or both parents die

e if advice is
taken in advance and a will is made

If your circumstances have changed, it is important that you make a will to

ensure that your money and possessions are distributed according to your
wishes. For example, if you have separated and your ex-partner now lives with
someone else, you may want to change your will. If you are married or enter into a
registered civil partnership, this will make any previous will you have made invalid.

If you are in any doubt as to whether or not you should make a will, you should consult
a solicitor or a Citizens Advice Bureau who can give you lists of solicitors.

What should be included in a will

To save time and reduce costs when going to a solicitor, you should give some thought
to the major points which you want included in your will. You should consider such
things as:-

how much money and what property and possessions you have, for example,
property, savings, occupational and personal pensions, insurance policies, bank and
building society accounts, shares

who you want to benefit from your will. You should make a list of all the people to
whom you wish to leave money or possessions. These people are known as

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beneficiaries. You also needs to consider whether you wish to leave any money to
charity

who should look after any children under 18

who is going to sort out the estate and carry out your wishes as set out in the
will. These people are known as the executors.

Who are executors

Executors are the people who will be responsible for carrying out our wishes and
for sorting out the estate. They will have to collect together all the assets of the
estate, deal with all the paperwork and pay all the debts, taxes, funeral and
administration costs out of money in the estate. They will need to pay out the gifts and
transfer any property to beneficiaries.

Who to choose as executors

It is not necessary to appoint more than one executor although it is advisable to do so,
for example, in case one of them dies. It is common to appoint two, but up to four
executors can take on responsibility for administering the will after a death. The people
most commonly appointed as executors are:-

Relatives or friends

Solicitors or accountants

Banks

licitor if
there is no one else willing and able to act.

It is important to choose executors with considerable care since their job involves a
great deal of work and responsibility. You should always approach anyone you are
thinking of appointing as an executor to see if they will agree to take on the
responsibility. If someone is appointed who is not willing to be an executor, they have a
right to refuse.

If an executor dies, any other surviving executor(s) can deal with the estate. If
there are no surviving executors, legal advice should be sought.

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Requirements for a valid will

In order for a will to be valid, it must be:-

18 years old or over; and

voluntarily and without pressure from any other person; and

sound mind. This means the person must be fully aware

of the nature of the document being written or signed and aware of the property and the
identify of the people who may inherit; and

in writing; and

signed by the person making the will in the presence of two witnesses; and

signed by the two witnesses, in the presence of the person making the will, after it
has been signed. A witness or the married partner of a witness cannot benefit from a
will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary),
the will is still valid but the beneficiary will not be able to inherit under the will.

Although it will be legally valid even if it is not dated, it is advisable to ensure that the will
also includes the date on which it is signed.

As soon as the will is signed and witnessed, it is complete.

Where to keep a will

Once a will has been made, it should be kept in a safe place and other documents
should not be attached to it. There are a number of places where you can keep a will:-

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Codicils

A codicil is a supplement to a will which makes some alterations but leaves the rest of it
intact. This might be done, for example, to increase a cash legacy, change an executor
or guardian named in a will, or to add beneficiaries.

A codicil must be signed by the person who made the will and be witnessed in the same
way. However, the witnesses do not have to be the same as for the original will.

There is no limit on how many codicils can be added to a will, but they are only suitable
for very straightforward changes. If a complicated change is involved, it is usually
advisable to make a new will.

Making a will

If you wish to make major changes to a will, it is advisable to make a new one. The new
will should begin with a clause stating that it revokes all previous wills and codicils. The
old will should be destroyed. Revoking a will means that the will is no longer legally
valid.

Who can make a Will?

Every person who is of sound mind and is not a minor can make a will.

y are able to
know what they do by it.

sound mind.

a state of mind, whether arising from

intoxication or from illness or from any other cause, that he does not know what he is
doing.

Modifying or revoking a will

A testator may modify an existing will by writing a new, dated will which revokes any
previous wills and codicils. With the advent of word-processors this is now becoming
recommended practice (as suggested by the international specialist body in this field,
the Society of Trust and Estate Practitioners) even for relatively minor changes to avoid
the difficulties of interpretation which can arise from a chain of (possibly mutually

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inconsistent) codicils. Particular difficulties in interpreting chains of codicils arise in
jurisdictions such as England and Wales which do not require wills or codicils to be
dated (although this is common practice).

PROBATE OF WILL & PROCEDURE FOR PROBATE

Probate

(i) means copy of the will certified under the seal of a court of a competent
jurisdiction.

(ii) Of a will when granted establishes the Will from the death of the testator and
renders valid all intermediate acts of the executor as such. It is conclusive
evidence of the validity and due execution of the will and of the testamentary
capacity of the testator.

A probate differs from succession certificate.

A probate is issued by the court, when a person dies testate i.e. having made
a will and the executor or beneficiary applies to the court for grant of probate.In
case a person has not made a will his legal heirs will have to apply to the court
for grant of a succession certificate which will be given as per applicable laws
of inheritance.

TO WHO CAN A PROBATE BE GRANTED

Probate can be granted only to the executor appointed by the will. The
appointment may be express or implied by necessary implication. It cannot be
grated to any person who is a minor or is of unsound mind, nor to any
association of individuals UNLESS it is a company satisfies the conditions
prescribed by the rules made by the State Government.

PERSONS ELIGIBLE FOR GRANT OF LETTER OF ADMINISTRATION

Where the deceased was a Hindu, Muhammadan, Buddhist Sikh or Jain or an

exempted person and has died intestate, the court may grant administration of
his estate to any person, who according to the rules for the distribution of the
estate applicable for in the case of such deceased would be entitled to the whole
or any part of such deceased 's estate. When several of such persons apply for
such administration, it shall be the discretion of the court to grant it to any one of

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them. When no such person applies, it may be granted to a creditor of the
deceased. Letters of administration entitle the administrator to all rights belonging
to the intestate as effectively as if the administration has been granted at the
moment after his death. They however do not render valid any intermediate acts
of the administrator tending to the damage of the intestate's estate. For obtaining
a letter of administration the beneficiary has to apply to the court. The court on
receiving satisfactory proof of valid execution of the will issues letter of
administration to the beneficiary. The application for letter of administration
has to contain the following details:

(a) the time of the testator's death

(b) that the writing annexed in his last will and testament

(c) that it was duly executed

(d) the amount of assets which are likely to come to the petitioner's hands, and
(e) the petitioner is the executor named in the will.

PROCEDURE FOR OBTAINING PROBATE

The application for probate shall be signed and verified by the executor or
beneficiary. The petitioner shall furnish a blank stamp paper of value equal to
the requisite court fee, along with the application. The court shall grant the
probate on the said stamp paper. After receipt of the petition, the court issues
notice to the next of kin of the deceased to file their objections, if any, to the grant
of probate. A general public notice is also given in a newspaper. The petitioner is
thereafter asked to establish the

(a) Proof of death of the testator;

(b) Proof that the will has been validly executed by the testator

(c) Will is the last will and testament of the deceased PROOF OF DEATH
Proof of death is usually shown by submission of original death certificate.

If a person was killed in an action while serving in armed forces, the official
notification may be produced in proof of death of the testator. Where there is an
air crash or sunk ship on the high seas and there is no possibility of survival and
a persons body is not recovered the court may take notice of the occurrence and

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be satisfied regarding the fact of death. Where a person disappears or is missing,
such a person as per law is presumed to have died if he is not heard of for a
period of seven years. ISSUE OF PROBATE BY THE COURT On the
satisfaction that the will in question has been validly executed the court will grant
probate to the executor named in the will.

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 POWER OF ATTORNEY

Power of Attorney

Definition -
In this Act, "Powers-of-Attorney" include any instrument empowering a specified person
to act for and in the name of the person executing it.

Execution under power-of-attorney -

The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or
thing in and with his own name and signature, and his own seal, where sealing is
required, by authority of the donor of the power; and every instrument and thing so
executed and done, shall be as effectual in law as if it had been executed or done by
the donee of the power in the name, and with the signature and seal, of the donor
thereof.
This section applies to power-of-attorney created by instruments executed either before
or after this Act comes into force.

Comments

(i) A holder of a power-of-attorney or an agent can not go beyond the principal. If

it is found that there is a serious doubt as to whether the principal may have authorized
in a 'normal state of mental frame' or mind which would give him/her independent
disposition and thinking power so as to exercise control over the agent, then such
'power-of-attorney' becomes worthless and null & void from the legal angle. [Mahendra
Pratap Singh & Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].

(ii) In circumstances, when the principal has become old, weak, mentally
infirm/incapable, and not in a position to have independent disposition and
thinking power, continuing to act on such power of attorney will be unethical & immoral
on the part of the agent and would amount to fraud, cheating, misappropriation &
criminal breach of trust. It would cease to have validity in law. [Mahendra Pratap
Singh & Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].

(iii) By virtue of the principal being not in a position to reflect or depose on the validity
or bona fide of a power of attorney before the court of law due to old age, weakness,
mental infirmity or incapacity, the credibility of such an instrument becomes
worthless, in the eyes of law. [Mahendra Pratap Singh & Anr. v. Smt. Padam Kumari
Devi, A.I.R. 1993 All. 143].

(iv) A power of attorney holder cannot give evidence on behalf of the Principal.
According to Order 32, Rule 15 of C.P.C. the general principals relating to a suit by or

15
against a minor would also apply to persons of unsound mind or mentally infirm in
capable. In this regard, a suit on behalf of such person may be filed by the next of
guardian or friend but by leave and an order of a court of law. [Mahendra
Pratap Singh & Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].

(v) If the principal is suffering from mental infirmity or incapacity to such an extent that
he/she can neither comprehend/safeguard his/her assets and properties nor can
take accounts from the agent or enable the agent to do so, then such 'power of
attorney' is worthless. Consequently, the relation between such principal and agent is
non- existent and treated as unforceable in the eyes of the law. [Mahendra Pratap Singh
& Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].

(vi) Where from the language of a general power of attorney, it is immaculate clear
that the intention is to confer such power which is "absolutely unqualified" and it
doesn't express any "limitation or restriction", then it must be read or held in the same
manner. [Syndicate Bank, Bangalore v. I.K. Amita & Ors.; A.I.R. 1985 Karn. 213].

(vii) It was held that a power of attorney may also need judicial interpretation of the
facts & circumstances of each case and a legal look at the "manner & purpose" of the
principal giving the power to the agent so as to "fathom the yardstick" of the power. The
principles enunciated for proper construction of a power of attorney were:

(a) Only in case of ambiguity, the operative part of the instrument is controlled by the
recitals (A formal statement appearing in a legal document such as a deed that is
preliminary in nature and provides an explanation of the reasons for the transaction).
The underlying fact/point is that "only in case of ambiguity and not otherwise shall this
principle be applied or referred to.

(b) When the general words follow a particular set of a acts, the role of the former is
restricted to what is necessary/essential for the proper execution/performance of such
particular acts. [Syndicate Bank, Bangalore v. I.K. Amita & Ors.; A.I.R. 1985 Karn. 213].

(viii) A power of attorney holder who has necessary power to sell properties i.e.
execute sale and convey proper title to the purchaser, of the executant to discharge his
debts by applying sale proceeds of the scheduled property binds the executant to
perform the obligations arising out of such contractual deal. It was held that in case of
an auction sale, if the bidder fails to deposit balance of the amount by the stipulated
date, he is not entitled to "specific performance" of the contract. However, consequently
his right to get the refund is not forfeited. [Doddarajappa v. Ven Koba Rao; A.I.R. 1986
Karn. 70].

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(ix) A duly 'authorised agent of a partner is precluded from signing on behalf of the
partner an application u/s 26 A of the Income-tax Act, for registration of the firm. The
applicant has to do it "personally" as per Rule 6 of the Income-tax Rules.

(x) Another exception is in case of "application for letters of administration" when the
applicant has to execute a 'personal bond'.

Payment by attorney under power without notice of death, etc., good.-

Any person making or doing any payment or act in good faith, in pursuance of a power-
of-attorney, shall not be liable in respect of the payment or act by reason that, before
the payment or act, the donor of the power had died or become of unsound mind, or
insolvent, or had revoked the power, if the fact of death, unsoundness of mind,]
insolvency or revocation was not, at the time of the payment or act, known to the person
making or doing the same.

But this section shall not affect any right against the payee of any person interested in
any money so paid; and that person shall have the like remedy against the payee as he
would have had against the payer, if the payment had not been made by him. This
section applies only to payments and acts made or done after this Act comes into force.

Comments
(i) If the power-of-attorney holder exceeds his limits as per the power granted to
him, by the instrument, then the provision of 'indemnity' in case of an act done in good
faith does not apply, even if he was unaware of the determination of his power in
consequence of revocation of power by or death/ insolvency of the principal.

(ii) However, when the power-of-attorney in favour of the counsel ceases due to the
death of the party, he should get fresh power-of-attorney from his widow, if he desires
to act as such and also, if the widow so desires.

Deposit of original instruments creating powers-of-attorney

(a) An instrument creating a power-of-attorney, its execution being verified by affidavit,

statutory declaration or other sufficient evidence, may, with the affidavit or declaration, if
any, be deposited in the High Court [or District Court] within the local limits of whose
jurisdiction the instrument may be.

17
(b) A separate file of instruments so deposited shall be kept and any person may
search that file, and inspect every instrument so deposited, and a certified copy thereof
shall be delivered out to him on request.

(c) A copy of an instrument so deposited may be presented at the office and may be
stamped or marked as a certified copy, and when so stamped or marked, shall
become and be a certified copy.

(d) A certified copy of an instrument so deposited shall, without further proof, be

sufficient evidence of the contents of the instrument and of the deposit thereof in the
High Court [or District Court].

(e) The High Court may, from time to time, make rules for the purposes of this section,
and prescribing, with the concurrence of the 2[State Government], the fees to be taken
under clauses (a), (b) and (c).

(f) This section applies to instruments creating power-of-attorney executed either

before or after this Act comes into force.

Comments
According to Curzon's Dictionary of Law, 4th Edn., First Indian Reprint 1994, 'affidavit'
means a written statement, sworn or affirmed, usually before a commissioner for
oaths, Notaries, Magistrates etc., in the name of the deponent. Statement on
affidavit can be generally subjected to cross-examination [Order 19(Rule 6) of C.P.C.].
However, the English law generally does not allow its subjection to cross-examination.
The motive behind this exercise is to add "authoritative sanctity" to the subject-matter of
the statement.

Power-of-attorney of married women

A married woman, of full age, shall, by virtue of this Act, have power, as if she were
unmarried, by a non testamentary instrument, to appoint an attorney on her behalf, for
the purpose of executing any non testamentary instrument or doing any other act which
she might herself execute or do; and the provisions of this Act, relating to instruments
creating powers-of-attorney shall apply thereto. This section applies only to instruments
executed after this Act comes into force.

Comments

Earlier, a married woman though a minor could appoint on attorney on her behalf u/s 5
of this Act, but after the Amendment Act of 1982, the concept of 'full age' has been
introduced, i.e. she must be a major above the age of 18 years.

18
 Effect of termination
(1) If

(a) the authority of an agent has been terminated, and

(b) a person who has no knowledge of the termination purports to deal with the principal
through the agent, then, for the purpose of determining the legal rights and obligations
of the principal in relation to that person, the transaction is, in favour of that person,
deemed to be as valid as if the authority had existed.

(2) Despite subsection (1), if the principal has

(a) by express revocation terminated the authority of an agent, and
(b) given notice of the termination to the agent, the liability of the principal to any person
for the subsequent acts of the agent must be determined without regard to this Act.

(3) If the authority of an agent to act on behalf of the agent's principal has been
terminated, but
(a) the agent purporting to act for the principal enters into a transaction with a person
(called in this section "the intermediate party"),
(b) the rights of another person (called in this section "the stranger") are dependent on
the validity of the transaction entered into by the agent with the intermediate party, and
(c) the stranger had, at the material time, no knowledge of the termination of the
authority of the agent, then, for the purpose of determining the legal rights and
obligations of the principal in relation to the stranger, the intermediate party is
conclusively deemed to have had no knowledge of the termination.

Probate or administration granted to an attorney

If probate or letters of administration have been granted to a person as attorney for
some other person, sections 1 to 4 apply as if the payments made or acts done under
the grant had been made or done under a power of attorney of which that other person
was the donor.

Corporation may appoint attorney

(1) A corporation within the legislative jurisdiction of the Legislature may, by instrument
in writing under its corporate seal, empower a person, in respect of a specified matter or
purpose, as its attorney, to execute deeds or documents on its behalf.

(2) An instrument executed by an attorney on behalf of the corporation is, if it comes

within the scope of the attorney's authority, binding on the corporation and of the same
effect as if it had been executed by the corporation.

19
 Deeds
A deed executed by an attorney under the seal of the attorney on behalf of a donor,
whether an individual or corporation,
(a) is binding on the donor if it comes within the scope of the attorney's authority, and
(b) is of the same effect as if it were under the seal of the donor.

Enduring power of attorney

(1) The authority of an attorney given by a written power of attorney that
(a) provides that the authority is to continue despite any mental infirmity of the
donor, and
(b) is signed by the donor and by a witness to the signature of the donor, other than
the attorney or the spouse of the attorney, is not terminated only because of subsequent
mental infirmity that would but for this Act terminate the authority.

(2) The authority of an attorney given by a power of attorney referred to in subsection

(1) terminates
(a) on the making of an order under section 3 of the Patients Property Act,
(b) on the appointment of a committee under section 6 (1) of that Act, or
(c) as provided in section 19 (a) or 19.1 (3) (a) of that Act.

Types of Powers of Attorney

There are, at a basic level, two types of powers of attorney.
A "general" power of attorney is unlimited in scope and duration, and permits the
named individual to act as your legal representative in relation to financial matters until
such time as it is revoked.
A "specific" power of attorney imposes limits upon the named representative, and
may restrict the scope of that person's powers to a single type of conduct or a single
transaction. For example, the person could be granted the power to engage in financial
transactions from a specific checking account, or to sign the closing documents for a
specific real estate transaction.

Either type of power of attorney may be limited in its duration. That is, the document can
specify a date after which the power of attorney will no longer be valid. Ordinarily, power
of attorney forms do not have to be registered with the state. However, if a power of
attorney grants somebody the right to engage in transactions relating to real estate, it
may be necessary to record the form.

Terminating a Power of Attorney

As long as you remain competent to manage your own legal affairs, you may terminate
any power of attorney that you have previously executed. To the extent possible, you

20
should collect and destroy the original powers of attorney and any copies, so as to avoid
confusion or misrepresentation at a later date.

Though there is a specific act pertaining to Power of attorney but it is a very precise and
brief one , the basic principles of these document are governed by the law of agency as
provided for in the Indian Contract Act.

A power of attorney may be of two types-

1) General
2) Specific-

The test to determine under which category a given document falls is as to what is the
subject matter in respect of which power is given and if it is restricted to some specific
matter it is specific else it is general.

Construction of a power of attorney- There are two main rules in construing a power
of attorney
1) The operative part of the deed is controlled by the recitals wherever there is any
ambiguity
2) Where authority is given to do particular acts followed by general words the general
words are restricted to what is necessary for the performance of the particular acts

TRUST
Introduction

Trust is a legal entity created to hold assets for the benefit of certain persons or entities,
with a trustee managing the trust (and often holding title on behalf of the trust). Most
trusts are founded by the persons (called trustors, settlors and/or donors) who execute
a written Deed of Trust which establishes the trust and spells out the terms and
conditions upon which it will be conducted. The Deed also names the original trustee
or trustees, successor trustees, or means to choose future trustees. The assets of
the trust are usually given to the trust by the creators, although assets may be added by
others. During the life of the trust, profits and, sometimes, a portion of the principal
(called "corpus") may be distributed to the beneficiaries, and at some time in the future
(such as the death of the last trustor or settlor) the remaining assets will be distributed
to beneficiaries. A trust may take the place of a will and avoid probate (management of
21
an estate with court supervision) by providing for distribution of all assets originally
owned by the trustors or settlors, upon their death. There are numerous types of trusts,
including revocable trusts created to handle the trustors' assets (with the trustor acting
as initial trustee), often called a "living trust" (or "inter vivos trust") which only becomes
irrevocable on the death of the first trustor; "irrevocable trust" which cannot be
changed at any time, "charitable remainder unitrust" which provides for eventual
guaranteed distribution of the corpus (assets) to charity, thus gaining a substantial tax
benefit. There are also court-decreed "constructive" and "resulting" trusts over property
held by someone for its owner. A "testamentary trust" can be created by a will to
manage assets given to beneficiaries.

Family Trust

A trust exists when one person (a "trustee") holds and owns property for the benefit
of another person (a "beneficiary"). A family trust is a trust set up to benefit members
of your family. The purpose of the family trust is for you to progressively transfer your
assets to the trust, so that legally you own no assets yourself, but for you, through the
trust, to still have some control over, and get the benefit of, these assets.

One can set up a family trust either while you are still alive (by a declaration of trust
contained in a trust deed) or when you die (by the terms of your will).

What are the key elements of a family trust?

Like any other type of trust, a family trust must have the following elements:

Elements

The Settlor The The The Trust The Trust

Trustees Beneficiaries Deed Assets

The Settlor

A trust begins with the owner of the property and assets. This person is known as the
settlor. The settlor begins a trust with the intent of holding property and assets for the
22
benefit of someone else. The settlor can place any asset into the trust including real
estate, vehicles, investments, savings accounts, and even antique items and art.

The settlor also has the responsibility of determining who will benefit from the assets.
Under current law, it is vital that the settlor choose a specifically mentioned person or
group of people. While most trusts are designed for the benefit of a settlors heirs, the
settlor can also name a specific church or charity to benefit from the trust. Once the gift
tax is paid and the trust papers filed, the trust is considered active and the settlors role
is for the most part complete.

The Trustee

Once the trust is established, the trustee takes over the care of the trust. The trustee
is a person specifically named by the settlor to care for and expand the assets of the
trust. The trustee has the right to do whatever is necessary with the assets to grow the
trust. For example, trustees may rent out real estate in order for the property to bring in
income. If there are antiques or artwork in the trust, the trustee may loan the pieces out
to a museum for a specific amount. Trustees can also choose how to invest any money
that is in the trust by forming a portfolio.

The trustee must act prudently with the trust funds. If the trustee does not act
prudently and money is lost, it is the trustee who must pay the trust back. Depending on
who the trustee is and how much time and effort the trustee spends on the trust, he or
she may be compensated for his or her time out of the trusts funds. The trustee
remains in charge of the trust until the trusts funds are exhausted, the trustee is
removed, or the trustee dies.

The Beneficiaries

The final parties to a trust are the ones receiving the benefit of the trust. These
people are known as beneficiaries. The beneficiaries of the trust have two roles.

(i) First, they receive payments from the trust and

(ii) Second, the beneficiaries audit the trust annually to verify that the trustee is
being responsible with the funds. If the trustee is spending the funds
inappropriately, or improperly investing the funds, then the beneficiaries are
responsible for removing the trustee and replacing that trustee with another who
will run the trust properly.

23
The trust deed - This is the legal document that states the settlor's wishes and sets up
the trust. It appoints the trustees and states their powers and duties, states the
beneficiaries, and states various rules for the administration and management of
the trust. In order for the deed to be clear and to meet certain tax requirements, it must
generally be a lengthy and carefully drafted document.

The trust's assets - The trust must have some assets. When the trust is first set up,
these assets will usually only be nominal say Rs.1,000. But the eventual aim is for the
trust to hold all of your significant assets.

Different Types of Family Trusts

Types of Family Trusts

Living

Trusts Testamentary Charitable Special Generation

Trust Remainder Needs Skipping
Trust Trust Trust

Living Trusts

A living trust gets created while the trustee and beneficiary are alive. You have
control of the trust while you remain alive, and then when you pass away the funds will
go to the beneficiary. All management roles get transferred to a designated trustee, who
can distribute them based on your wishes. A living trust is common, and usually
involves a piece of property.

Testamentary Trusts

The testamentary trusts are created as part of your will. These trusts do not take effect
until after your death, and they commonly get used to transfer money to beneficiaries.
Someone within the family can take the role of the trustee or manager, or someone can
hire a trustee to assume the role of distributing wealth.

Charitable Remainder Trust

24
Charitable lead trusts make a great option for those of you that do not have any close
family, or would like to see a portion of your wealth go to a charitable organization. You
will receive income and a tax deduction at the same time, leaving your assets to charity.
This trust sells the donated portion of your assets tax free, and establishes an annuity
which gets paid to you or your spouse for a certain amount of time, after which, anything
that remains goes to the charity.

Special Needs Trust

Perhaps you have a special needs or disabled child. To make sure they get taken care
of and have the medical care they require, a special needs trust is a viable option. A
special needs trust allows them to get covered for any special medical care they should
require after you pass away.

Generation Skipping Trust

A generation skipping trust makes a good option if you want to leave money to your
grandchildren. This type of trust allows your grandchildren to become exempt to any
taxation on your assets up to certain percent depending on your state tax laws.

Family Trust V/s Will

Function

The basic function of a will is to dictate how your assets will be distributed upon your
death. According to the University of Georgia, you also can use a will to pay your estate
taxes, identify the executor of your estate and appoint a legal guardian for minor
dependents.

A family trust has a slightly different function. According to Trust makers, a family trust
can protect your family's assets and interests while you are still living as well as after
your death.

Types

While there is only one basic type of family trust, there are a number of different types of
wills. A holographic will is one that you hand-write. The validity of holographic wills

25
varies by state, and you must meet your state's requirements for age, mental capacity
and witnesses. An attorney draws up a statutory will in accordance with state
guidelines. A joint will involve multiple asset holders. In certain states, you can draft
your will orally.

Features

According to Trust makers, a family trust has main components: the trust deed, the
settlor and the trustee. The trust deed establishes the terms and conditions of the trust.
The settlor executes the trust deed and transfers assets of the trust to the trustee. The
trustee manages the trust and its assets.

While the state guidelines for wills vary, wills typically feature a series of clauses that
identify the asset holder, indicate the date, indicate the distribution of assets, identify the
executor and minor guardian, direct the payment of debts or taxes and indicate the
witnesses.

Benefits

According to The Wealth Channel, the primary advantage of having a will is the control
it allows you in naming your beneficiaries and executors and distributing assets. If you
die without a will, the state is responsible for administering your estate according to
probate law rather than your individual wishes.

A family trust protects your interests in the event you become incapacitated and
controls the transfer of assets to beneficiaries.

Considerations

It is important that a will or family trust meet the legal standards set forth by your state.
While there are a number of resources available to help you create your own will or
trust, you should consult an attorney if you have a particularly large or complicated
estate. You should also be aware of what types of assets cannot be distributed through
a will, such as life insurance proceeds or retirement accounts.

26
Rule against perpetuity
No transfer of property can operate to create an interest which is to take effect after the
life time of one or more persons living at the date of such transfer, and the minority of
some person who shall be in existence at the expiration of that period, and to whom, if
he attains full age, the interest created is to belong.

Historical Introduction: The doctrine of perpetuities was born in Medievel England,

which was strongly marked by characteristics of feudalism. At that time, there was a
tendency, especially among the biggest land holders, i.e., the barons, lords, members of
the nobility and the church to create unbarrable entails in land by means of springing
and shifting uses, executory devices, power of appointments etc. This ensured that land
could not be alienated for many future generations to come. Such large land holdings
tied up in inalienable estates was absolutely opposed to free trade and commerce. This
class started to clamor for the free circulation of land.Surprisingly, their demands found
favor with the King, who at this time was trying toassert his importance and escape the
dominance of the Church. The papacy was established mainly in France and the King of
England was eager to break free from the subordinating effect of the Holy Papal
control, which dominated political affairs mainly because of its economic strength in
terms of huge land holding. In fact the Church was the biggest landholder in medieval
England and retained its control by extending such holdings in perpetuities, dedicated to
the so-called cause of God. Around the 16th and the 17th centuries therefore various
rules were devised to make the creation of unbarrable entails impossible. A
treatise entitled "the use of the Law" which was probably written at the end of the 16th
or the beginning of the 17th century affords clear evidence, both of the novelty of the
attempts of the landowners to create perpetuities, and the meaning that the lawyers of
that day attached to perpetuity". Perpetuity was often perceived as an entail with an
addition of a provision conditional, tied to his estate, not to put away the land from the
next heir and if he did so, to forfeit his estate. These perpetuities if they should stand
would bring in all the former inconveniences of entails. A new rule against perpetuity
was formulated which required every future estate limited to arise by way of shifting use
(when it is possible to limit an estate in fee simple to take effect after the determination
of another fee simple upon the happening of a future event otherwise than by way of re-
entry on breach of a condition) or executory device to be such as must necessarily arise
within the compass of existing lives and twenty one years after, with the possible
addition of the period of gestation, in the case of some person entitled being a
posthumous child. But if no lives are fixed on, then the term of twenty one years only is
allowed. And every executory estate, which might in any event transgress

27
the limits so fixed, will from its commencement be absolutely void. This rule was
established clearly in the Duke of Norfolk's Case. The case laid down the root principle
of the modern rule against perpetuities, i.e., the validity of an executory interest that
depends on the remoteness of the date at which it is limited to vest. It also clearly lays
down that in considering the validity of a limitation, possible and not actual events must
be considered, this case did not settle the question as to the utmost limit of time at
which a future interest could be made to vest. It settled only that it was valid if limited to
vest after a life or lives in being. It was only in 1736 in the case of Stephens v.
Stephens" that an execution" devise limited to grandchildren living at the time
of the testator's death when they attained 21 was valid In effect the maximum period of
vesting after the death of the last life estate holder was determined to be 21 years.'? In
1797, it was' settled that a child en ventresa mere (conceived but not yet born) might be
treated as a life in being, thus extending the period by a future nine months. In 1805, it
was settled that the lives in being might be chosen at random and be unconnected with
the property and in 1833 in Cad ell v. Palmer, that the period of 21 years was an
absolute period without reference to any minority, but that the period of gestation could
be added if in fact gestation existed.

The Rule against Perpetuities in India and the difficulties involved therein
The rule against perpetuities was adopted in India by S.14 of the Transfer of Property
Act, 1882 and by S.114 of the Indian Succession Act, 1925. The main difference
between the two is that the former pertains to transfers inter vivos and the latter to
testamentary transfers. Introduced in India bythe British, the rule against perpetuities
has much the same characteristics as it did abroad.
The guiding reasons were also similar in its economics. Large land holdings had been
tied up in Zamindaris etc. and the British desperately needed to control increasing
amounts of land to establish its economic strength in India, especially, if all land was to
be declared as the King's and free circulation enabled among the various tenets at the
pleasure of the English monarch and his administration in India.

It is founded on the general principle of policy guiding judges, that the liberty of
alienation shall not be exercised to its own destruction and that all contrivances shall be
void which tend to create perpetuity or place property out of the reach of the exercise of
the power of alienation.

It was perceived as damp to Industry and trade and put additional inconveniences on
the family whose estate was so fettered. Accordingly, it has been ratified in a number of
decisions, of which M.Kesavan Gowderv. D.C.Rajan is a leading case, that restrains
against alienation and remoteness of vesting being two principles well knit as between
each other ought not to be encouraged by courts of law, which administers no only law,
also equity and good conscience. In accordance with this principle, Transfer of Property
Act, 1882 provides that no transfer of property can operate to create an interest which is

28
to take effect after the lifetime of one or more .persons living at the date of such
transfer, and the minority of some person who shall be in existence at the expiration of
that period, and to whom, if he attains full age, the interest created is to belong.

This indicates the first and foremost of divergence of Indian law is from English Law.
According to the latter, the vesting of property might be postponed for any number of
lives in being and an additional term of 21 years, and for as many months in addition as
are equal to the ordinary period of gestation, should gestation exist, and the additional
term of 21 years might be independent of the minority of any person to be entitled.
Indian law however allows the vesting to be delayed beyond the life time of persons in
existence, for the period of minority of some persons born in their life time, the addition
of an absolute period of 21 years has not been adopted here.

So, whereas, under the English law, the additional period allowed after lives in being is
21 years in gross, without reference to the infancy of the person, under the Indian
statute the term is the period of minority of the person to whom, if he attains full age, the
thing bequethed is to belong, at 21 if he has a guardian appointed by the Court in some
cases, at 18 years in others." The causes of dissatisfaction with the rule are mainly two:
The requirement of absolute certainty that the interest will vest within the perpetuity
period, and its consequent invalidity if any possible combination of events, however,
improbable or fantastic, could it to vest outside the perpetuity period. The harsh
consequences of violating the rule, whereby, the interest fails to vest completely instead
.of being cut down to size. There is widespread agreement that some form of reform is
required. To illustrate the point, a look at the case of Soundarjan v. Natarajan15 would
be useful. This case illustrates the anomaly resulting f.rom the fact that a slight excess
over the legally permissible age may defeat the transfer.

That case was no doubt a case relating to successio of death, but the position would be
the same in respect of transfer during a person's lifetime. In thiscase, an estate WaS
given the testator's daughters for their lives with the remainder for the children on
attaining the age of 21 years. The age of majority in India is 18years,unless guardians
are appointed or a Court of Wards takes charge. It was held that, as altha testator's
death, it could not be certain that in the case of every child a guardian would necessarily
be appointed so as to postpone the minority of the child to 21 years, there was a
possibility that the bequest would be held beyond the lifetime of the daughters and the
minority of some of the children of the daughters. Hence, by virtue of the operation of
S.102, Indian Succession Act, closely corresponding to its S.114 and also by Transfer
of Property Act, 1882 the transfer was illegal and void.

Similarly in Puma Shashi Bhattacharjee v. Kalidhan rai Choudhary 16, it was held that
the vesting may be postponed beyond the limits fixed by this section, the disposition will
be bad although the events on which the vesting depend actually happened within the

29
prescribed limit. Reforms in India should be mainly spearhead in two directions: Regard
be had to actual events Mischief arising from conditions as to age should be remedied.
The law Commission of India in its 70th Report had the following suggestions to make in
this regard: In Applying S14,to an interest in property-limited to take effect at or after the
termination of one or more life interests of persons in being when the period mentioned
in S.14 commences to run or on or after the termination of lives of persons inbeing
when such period commences to r un. the validity of the interest shall be determined on
the basis of the facts existing at the termination of such one or more life estates or lives
It may be added that for the purposes of this proposition, an interest which must not
terminate later than the death of one or more persons is a life interest, even though it
may terminate at an earlier time.

If such a provision is enacted, the Court will determine the validity of the gift by
examining the actual facts as they appear at the end of the life interest. If an interest in
property is void under S.14, because it is contingent upon any person attaining or failing
to attain the age in excess of majority, the contingency shall be reduced to the age of
majority as regards all persons subject to the same age contingency.

The above two propositions shall not be constructed as invalidating or modifying the
term of any limitation which would have been under S.14 apart from these provisions.
The above three propositions shall apply to transfer taking effect on or after the date on
which those propositions become operative and to appointments made after that date in
exercise of a power of appointment, including appointments made by an instrument
under a power created before that date." Apart from this entire discussion it would be
fruitful to mention that the Indian law in this regard largely conforms to the modern rule
against perpetuities that we have examined in the previous chapter. Apart from the
distinguishing factors mentioned above the nuances of the modern rule against
perpetuities are fully Transfer of Property Act. It would still -be worth mentioning that the
rule against perpetuities applies to movable as well as immovable property." however
there are certain exceptions to the
application of which even though outside the scope of this paper may briefly be
mentioned. Charities
(reference may be made to Section18 Transfer of Property Act),

30