AWill is a legal declaration of the intention of the testator, with respect to his property, which he wants effected after his death. Every person of sound mind, as long he is not a minor, can make a Will. A Will being a legal declaration, must be signed and attested, as required by law.
There must be some property which is being given to others after the death of the testator. It becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator and has no effect during the lifetime of the testator.
The testator can change his Will, at any time prior to his death, in any manner he deems fit. A Will can be written in any language and no technical words need to be used in a Will. However, the words used should be clear and unambiguous so that the intention of the testator is reflected in his Will. A Will can be made at any time in the life of a person. There is no restriction of law as to how many times a Will can be made by a testator. However, only the last Will made before his death is enforceable.
The Will has to be executed by the testator, by signing or affixing his fingerprints on the Will. If a person is of unsound mind at the time of making a Will, such Will is not enforceable. A Will obtained by force, coercion or undue influence, is a void Will as it takes away the free agency of the person. A Will made under influence of intoxication or in such a state of body or mind, sufficient to take away free agency of a testator, is a void Will. If it is proved so, the Will becomes ineffective.
The Will needs to be attested by two or more witnesses, each of whom should have seen the testator signing the Will. The witnesses should sign in the presence of each other and in the presence of the testator. If a testator intends to make few changes in the Will, without changing the whole Will, he can do so by making a codicil to the Will. The codicil can be executed in a similar way as the Will. Both the will and the codicil can be altered or revoked at any time.
If, at any time, the testator wishes to withdraw the Will, he can do so. A Will also can be sealed and kept in safe custody. This will be released only to the testator himself or, after his death, to an authorised person who produces the death certificate. On the death of the testator, an executor of the Will or a 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 a 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.
It is only after this that the Will comes into effect. The registration of a Will is not compulsory. The Will can be registered with a subregistrar. A nominal fee needs to be paid. The testator must be personally present at the registrar's office along with witnesses. The registration of a document provides evidence that the parties had appeared before the registering officer and he had attested the document after ascertaining their identity.
In India, the registration of Wills is not compulsory even if it relates to immoveable property. The non-registration of a Will does not lead to any inference against the genuineness of a Will. Registration of the Will by the testator himself evidences the genuineness of the Will. Whether registered or not, a Will must be proved as duly and validly executed, as required by the Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the registrar and therefore cannot be tampered with. No stamp duty is required to be paid for executing a Will or a codicil. A Will, therefore, need not be made on stamp paper.
Source:: Economic Times
Monday, September 3, 2007
Elements of a Power of Attorney ( POA )
The two different types of POA and what they mean
Power of Attorney (POA) aims at granting authority to a person to do certain acts on behalf of someone. It is given when a person authorises another person to do something on his behalf.
Under the Power of Attorney Act 1882, it includes any instrument empowering a specified person to act for and in the name of the person executing it. The person for whom such an act is done or is so represented is called principal. The person who is executing the POA is called principal or the executant. The person to whom power is granted is called GPA holder or beneficiary. Both the principal and agent should be competent to contract.
A POA creates special power of agency, which entitles the holder to use the principal's name in the transaction on his behalf. A POA can be either a general POA or a special POA. A general POA gives wide powers to the agent to do various acts on behalf of the principal as detailed in the deed and not confined to any specific act relating to a specific subject. On the other hand, a specific POA is given in respect of a single specified transaction like selling of a particular property. Once the particular act is completed, the POA naturally gets revoked or the powers of the holder get exhausted.
The attestation of a POA is not compulsory. However, in order to avoid any disputes, and to establish proof that it is genuine it is advisable to get the document attested by two witnesses.
Registration of this document is not compulsory. In case it is to be registered it should be presented at the sub-registrar's office that has jurisdiction over the immovable property, referred to in the document. In other cases, the document may be presented for registration either in the office of the sub-registrar in whose sub-district it was executed or in any other sub-registrar's office in the State as the executants desire. Notarising a POA is as good as registration. A court will presume that every document purporting to be a POA that has been executed before and authenticated by a notary public is properly executed and would be a conclusive proof. Each page of the document notarised should bear the official stamp of the notary disclosing his registration number and jurisdiction, and have his signature. Appropriate notary stamp has to be affixed.
Any POA executed outside India needs authentication. It has to be executed in the presence of certain designated officers. The persons empowered to authenticate the documents include notary public, any court, Indian consul or vice consul, and representative of the Central Government. Any POA executed outside India should be authenticated by the notary public of the foreign country, consul, vice consul or by a representative of the Central Government. Such documents need to be stamped within three months from the date of receipt in India, to be payable at the District Registrar's office.
Power of attorney attracts stamp duty which varies from State to State. Usually, if the power given was one coupled with interest, it cannot be withdrawn. In case an agent has an interest in the property that forms the subject matter of the agency created via the POA, the agency cannot be terminated to the prejudice of such an interest. Also, where an agency is created for valuable consideration and authority is given to effectuate a security, the authority cannot be revoked.
The POA is irrevocable if it creates an agency coupled with interest, unless there is an express stipulation to the contrary. Where the authority of an agent is given for the purpose of effectuating any security or of protecting any interest of the agent, it is irrevocable during the subsistence of such security. In other cases, it may be revoked by the principal at any time before the agent has acted on it.
Source:: Economic Times
Power of Attorney (POA) aims at granting authority to a person to do certain acts on behalf of someone. It is given when a person authorises another person to do something on his behalf.
Under the Power of Attorney Act 1882, it includes any instrument empowering a specified person to act for and in the name of the person executing it. The person for whom such an act is done or is so represented is called principal. The person who is executing the POA is called principal or the executant. The person to whom power is granted is called GPA holder or beneficiary. Both the principal and agent should be competent to contract.
A POA creates special power of agency, which entitles the holder to use the principal's name in the transaction on his behalf. A POA can be either a general POA or a special POA. A general POA gives wide powers to the agent to do various acts on behalf of the principal as detailed in the deed and not confined to any specific act relating to a specific subject. On the other hand, a specific POA is given in respect of a single specified transaction like selling of a particular property. Once the particular act is completed, the POA naturally gets revoked or the powers of the holder get exhausted.
The attestation of a POA is not compulsory. However, in order to avoid any disputes, and to establish proof that it is genuine it is advisable to get the document attested by two witnesses.
Registration of this document is not compulsory. In case it is to be registered it should be presented at the sub-registrar's office that has jurisdiction over the immovable property, referred to in the document. In other cases, the document may be presented for registration either in the office of the sub-registrar in whose sub-district it was executed or in any other sub-registrar's office in the State as the executants desire. Notarising a POA is as good as registration. A court will presume that every document purporting to be a POA that has been executed before and authenticated by a notary public is properly executed and would be a conclusive proof. Each page of the document notarised should bear the official stamp of the notary disclosing his registration number and jurisdiction, and have his signature. Appropriate notary stamp has to be affixed.
Any POA executed outside India needs authentication. It has to be executed in the presence of certain designated officers. The persons empowered to authenticate the documents include notary public, any court, Indian consul or vice consul, and representative of the Central Government. Any POA executed outside India should be authenticated by the notary public of the foreign country, consul, vice consul or by a representative of the Central Government. Such documents need to be stamped within three months from the date of receipt in India, to be payable at the District Registrar's office.
Power of attorney attracts stamp duty which varies from State to State. Usually, if the power given was one coupled with interest, it cannot be withdrawn. In case an agent has an interest in the property that forms the subject matter of the agency created via the POA, the agency cannot be terminated to the prejudice of such an interest. Also, where an agency is created for valuable consideration and authority is given to effectuate a security, the authority cannot be revoked.
The POA is irrevocable if it creates an agency coupled with interest, unless there is an express stipulation to the contrary. Where the authority of an agent is given for the purpose of effectuating any security or of protecting any interest of the agent, it is irrevocable during the subsistence of such security. In other cases, it may be revoked by the principal at any time before the agent has acted on it.
Source:: Economic Times
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