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My father has made a will in favour of me but it has been got written from someone else but not written by my father himself although signed by him . I want to know whether it is a valid will and can be executed at law. I also want to know can a will be executed at law years after the death of the maker say 10 years 20 years etc.Should witnesses to it be present at the time of its execution at law.What happens if they cannot be found at that time or have died.

  • Wills are very jurisdiction specific - where is this? – Dale M May 14 at 5:13
  • It is in Punjab district and city Jalandhar. – Jasbir singh May 14 at 5:15
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When Is A Will Valid In Punjab?

Inheritance in India is governed by national law, but the law that applies depends upon the religion of the testator (i.e. the person executing the will for themselves).

In India the controlling law in the case of wills made by any Hindu, Buddhist, Sikh or Jaina (and some but not all Parsis) is the Indian Succession Act of 1925:

A Will has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested by two or more witnesses, each of whom should have seen the testator signing the Will.

From here, which is the traditional common law requirement. See Section 63.

(Shariah law governs inheritance and wills made by Muslims and none of the discussion in this post applies to them. The requirements for succession at death under Shariah law are beyond my expertise. I am also not familiar with the choice of law rules that apply to Christians, to people whose religion is unknown, and to people in inter-religious marriages that are not all within the categories above.)

Only an original Will is valid, a copy is not sufficient for this purpose (in this respect a Will is like paper currency) in the absence of testimony explaining why the original cannot be produced (e.g. if someone could testify that they knew that it was stored in a safety deposit box in a bank that caught fire and burned to the ground and that a copy tendered to the court is authentic).

The witnesses (or at least one of them, if any are available) must provide a sworn statement that the Will is valid in connection with the proceeding to give it legal effect (called probate). See Section 281. But, this is not required if no witnesses are available, for example, because both are dead. India does not recognize the concept of a self-proving will that is recognized in some U.S. states where notarized wills don't have to be verified by witnesses after the fact.

If the Will is not witnessed, then the Will is invalid and the property of the decedent (i.e. dead person) will pass upon death as if that person did not have a Will, except in the case of "privileged Wills".

Sometimes a will can be valid if it has a signature and all material provisions in the handwriting of the decedent, in which case it is a valid "privileged will") but only if it is made by

Any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years

See Sections 65-66.

What Happens When A Will Is Probated Long After The Testator Dies?

can a will be executed at law years after the death of the maker say 10 years 20 years etc.

In most cases (again in the case of wills made by any Hindu, Buddhist, Sikh or Jaina, and some but not all Parsis), the property of the testator (i.e. person who wrote a will) will generally have been distributed via intestate succession (i.e. under the rules that apply to people who die without wills) or a prior will, long before ten or twenty years have elapsed.

It is frequently a practical necessity to administer via intestate succession or a prior will, real property, and intangible property (e.g. bank accounts or rights to bring lawsuits). Property of this kind will usually be lost to creditors (including tax creditors) or escheat to the government (as if there were no valid heirs) if it does not pass by intestate succession or a prior will by then or if the assets otherwise become worthless (e.g. statutes of limitations on lawsuits and unpaid debts will expire, stock options and real estate options will not be exercised at the time required, etc.)

So, a late probated will (probate is the process of authenticating and giving legal effect to a document alleged to be a will), will usually only apply to assets that were not previously distributed via intestate succession or a previous will. Distributions previously made on the assumption that there was no will or that there was a different will in force, will not be upset ten or twenty years after the testator's death.

Typically, the kinds of assets that still remain to be governed by a late probated will include undistributed assets in a testamentary trust created by an earlier will, copyrights that previously had no commercial value, fractional interests in real estate also owned by other heirs and maintained by other heirs, mineral rights that have been severed from surface rights in land, tangible personal property amounting to heirlooms in the custody of someone not known to the executors of the original estate (e.g. recently recovered stolen valuable artwork, or a classic car stored in the testator's friend's farm building and forgotten at the time of death), and bank accounts in asset protection jurisdictions that don't issue regular statements to account owners (e.g. numbered Swiss bank accounts).

Far more often, there is no property left which is subject to direction by the late discovered will.

Caveat

I have listed only the primary and frequently arising rules and exceptions. There are many other considerations and exceptions that apply, but none that are obviously triggered by the facts actually stated in the question.

For example, a will might not be considered valid if it violates the rights of a widow or if it leaves property to someone who murdered the testator.

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The relevant law, so far as I can make out, is the Indian Succession Act 1925, which provides at section 63

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

So it makes no difference whether the will was drawn up by a lawyer, writer or other person, so long as your father signed it.

It is perfectly normal for wills to be executed many years after they are drawn up, though there may be difficulties proving that no other will was drawn up in the meantime. An oath that no relevant person knows of any other will is usually sufficient.

And the Act makes no reference to the witnesses being referred to when the will is executed ('submitted to probate' is the relevant action). Of course, if somebody disputes the will -perhaps by saying the testator did not know what he was signing- the original witnesses will be needed to provide evidence; but if they are not available the court will generally hear whatever evidence there is.

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