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How can a ‘will’ be executed in India if one of the heirs is unable to visit the country?
- In the event if a Probate/Letter of Administration is already obtained by the executor of the will and thereafter if the executor has discovered the properties, then the executor may apply before the same Court for Letters of Administration for such assets
A and B are siblings. A resides in India while B lives abroad. Their father died in India mentioning his assets are to be divided between A and B. Among several assets, A and B have a joint share in a property which they plan to sell and divide the proceeds. B has a health issue and is unable to visit India. How can the siblings execute the will in such a case?
—Name withheld on request
Considering the fact that the father died in India, the will has to be acted upon by the executor named under the will. The executor is a legal representative of the deceased for his estate and is responsible for execution and implementation of the desires of the deceased as per the will.
In the given circumstances, if A and B have already inherited the property and are desirous of selling the property, B who is unwell can execute a Special Power of Attorney (which will attract stamp duty as per applicable state and the registration charges) in favour of A empowering him to deal with, negotiate, sell, receive money and deposit the sale proceeds received against sale of the property to a third party.
If a person forgets to mention some of the properties in the will, what are the legal consequences of such omissions after his death? Further, is there any difference between the treatment of forgotten assets and future assets?
—Name withheld on request
In the event if a Probate/Letter of Administration is already obtained by the executor of the will and thereafter if the executor has discovered the properties, then the executor may apply before the same Court for Letters of Administration for such assets.
Most of the times a person making will does not necessarily incorporate the entire asset holding and generally concentrates on the important assets which he wishes to bequeath after his demise and forgets adding the details of certain assets. These are forgotten assets.
At times, certain assets are included in the estate of the maker of the will only after execution of the will and therefore they are not part of the asset list at the time of making the will. These assets are known as future assets.
Can a landlord do anything to prevent a tenant or obstructionist from delaying the execution application in an ex-parte decree?
—Name withheld on request
An obstructionist is any person in possession of the subject premises. Such a person may not necessarily be a tenant but a person who is trying to stall a decree for possession.
An ex-parte decree is one where the court passes the decree after hearing only one side. If a tenant or an obstructionist refuses or fails to comply with such ex-parte decree for eviction, the competent court may order the judgment-debtor (obstructionist) to deposit reasonable mesne profits —which is akin to a person who is trespassing on the subject premises and not paying anything to the owner of the premises—with the competent court. The quantum of such mesne profits may be equivalent to the prevailing market rent required to be paid by a person occupying the property.
Additionally, the landlord may file an application before the court to use necessary force with the help of the police, to remove the obstructionist and put the owner in possession of the property.
Aradhana Bhansali is partner, Rajani Associates
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Business NewsMoneyPersonal FinanceHow can a ‘will’ be executed in India if one of the heirs is unable to visit the country?
First Published:4 Jan 2023, 01:03 AM IST
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