IF A PERSON IS INDEBTED TO THE PERSON WHO MADE THE WILL, NEITHER HE CAN BE AN EXECUTOR IN PROBATE PROCEEDINGS NOR HE CAN BE GIVEN LETTERS OF ADMINISTRATION: THAT’S WHAT BOMBAY HIGH COURT HELD IN “MANIRAM VERSUS SETH ROOPCHAND”

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Introduction

If a person dies his property is distributed in the manner provided by his personal law. Like in the case of a Hindu male his property will be divided amongst his mother, wife, sons and daughters equally. This is called Intestate Succession.But what if a person does not want this to happen?

In old age most of the persons are left by almost all their children and the old man is left alone to fend for himself. In such cases this senior citizen may want, and rightly so, that nothing goes to any of his children and all his property goes to the person who looked after him in his old age. In these cases making a Will is a pertinent course of action as it ensures that the property of the deceased is distributed according to his own wish and not his personal law.

But Alas! in India the knowledge about Wills remain limited and people do not know how to draft a Will or whom to appoint an Executor? Even if someone gets a property in the Will, that beneficiary do not know how to take appropriate proceedings in a Court of Law to receive that property.

The instant case, though not directly deal with the issue in hand, but gives a very great insight as to how the dynamics of a Will works, who is an Executor, what is a Probate and what is meant by Letters of Administrtation.

So let’s understand by way of this case what is what in case of a Will.

Brief Facts

Motiram and Roopchand (let’s say the Defendant) were both money lenders and both had regular dealings in which they loaned money to each other. On account of these transactions the Defendant has to pay Motiram some money (let’s say Rs.100). Before he could pay, Motiram expired.

Now Motiram left a Will naming his son Maniram, who was a minor (below the age of 18 years), as his heir. Motiram wrote in his Will that as his son is a minor the Defendant will be the Administrator of his estate (Estate is a legal term which means all the property which a Testator has left behind) and act as a trustee for the minor. But mistakenly the Defendant applied for Probate and the said application was dismissed on the ground that the Defendant is not a legally appointed Executor in which case the proper course would have been to apply for Letters of Administration.

Now before going any further let’s understand what is a Probate and what are Letters of Administration? Dynamics of a Will has been explained by me in this Article .

Will is essentially the intention of a person as to how his property should be distributed after his death. Now in a Will the person can name an Executor. The Executor is the person who is given the responsibility to execute the Will. To understand this let’s assume A has 3 sons and one daughter namely W, X, Y & Z respectively. Now W & X say that before his death A has made a Will dated 1.1.1980 in which he has given his flat in Rohini, Delhi to W and all jewellery in his bank locker to X. According to this Will A has not given anything to Y & Z. Now in this Will P is appointed as an Executor by A. This gives P the right to move to the Court to obtain Probate of the Will under Section 213 of Indian Succession Act, 1925. Further it is the duty of the Executor to distribute the property of the deceased in accordance to the Will. Now once the Executor obtains Probate of the Will he will give the Rohini flat to W and jewellery from the bank locker to X (when Probate is given to the bank authorities having the locker, they have to release the jewellery to X. Though it’s easier said than done).

But the moot question is “Whether Probate is necessary”? In other words is it necessary to go to Court if your parents or someone else has given some property to you in the Will? The legal answer is no. In states like Delhi even an unprobated Will work provided all the sons and daughters are happy with it. But if W and X are given all the property of A then it will be wishful thinking to believe that Y & Z will not object to it. So the practical answer to the above said question is yes. Because if you do not apply for Probate of the Will than your siblings will allege that you have forged the Will to get all the property for yourself and that’s why you shied away from moving to Court to obtain Probate. Also a criminal case can be filed against the person who gets the property in the Will on the ground that he has forged the Will and there was never any Will made by the deceased. Therefore, it is advisable to approach the Court first if you are saying that you have a Will in your favour as it will show that you have nothing to hide and the Will you are relying on is a genuine document.

Further obtaining Probate is advisable because if you don’t obtain a Probate and the property is distributed wihtout it some 3^rd party or the legal heirs can challenge such distribution and for resolving the said dispute everyone has to go to the Court anyways.

Another ground which tilts the scale in the favour of obtaining Probate is that it is possible that after making a Will on let’s say 1.1.1980 A has made another Will dated 1.1.1982 whereby he has given his Rohini flat to Y and the jewellery in his bank locker to Z.(Remember a subsequent Will overrides the previous one. This is called Revocation). So if Probate is not taken by the Executor there is every possibility that Y & Z may come to the Court tomorrow alleging either fraudulent Will or a subsequent Will and challenge the property given to W & X.

But how Probate stops this from happening? Now if the Executor goes to the Court to get the Probate all the Legal heirs like mother, wife, brothers, sisters etc. will be necessarily called to the Probate Court. Further a notification is published in a newspaper to invite objections to the Will. In this way all people who have any problem with the Will present their self before Probate Court and hence they cannot afterwards take the ground that the Will is fake or have been revoked by a future Will.

Now how Will is different from Letters of Administration? Difference is basically this: if a Will does not name a person as an Executor then a legal heir on a person getting some benefit under the Will can apply to the Court to get Letters of Administration. After getting the Letters of Administration he has to distribute the property in a similar manner as would have been done by an Executor. So if there is no Executor named in the Will then the parties have to go to Court to get Letters of Administration. After the Administrator distributes property according to the Will, he files an Affidavit of Administration in the Court stating that the Will has been fully administered and nothing else is left to be adminsiterred (read distributed) under the Will.

Now after understating what is a Will and Letters of Administration let’s again come back to the facts of the case. When the Court declined to grant the Probate of the Will to the Defendant the proper course would have been to file for Letters of Administration as explained earlier. But Defendant did not do so and even he could not do so because he has to pay a debt to Moti Ram and the person who is indebted to the person making a Will cannot get Letter of Administration or for that matter Probate of the Will. This is called intermeddling with the property of the deceased (who has made the Will) and the person is called Executor de Son Tort.

That is the reason why the Defendant was not allowed to get either the Probate or the Letters of Administration in respect of the Will.

Conclusion

In the above case we saw that there was misunderstanding about even a basic concept that an Executore de son Tort cannot obtain Probate or Letter of Administration. Despite Will being an effective instrument of distributing the property of a person according to his own wish there are many misconceptions about the same. Like some people say that only High Court can grant Probate in case of a Will, which is incorrect as subordinate courts in Delhi like Patiala House Courts have dedicated Probate Courts for granting them and whether a probate case is to be filed in the High Court of Delhi or a Subordinate Court is dependent on the valuation of the property and place of death of the person who made the Will.

As a practising Civil Lawyer it is my endeavour to elucidate some concepts about a Will so that the doubts in people’s mind about thte procedure to be adopted in the case of a Will can be cleared and the testamentary cases, which presently takes more than 20 years for its disposal, can be resolved expeditiously.

Parveen Semwal

Advocate, High Court of Delhi and Supreme Court of India