WILL
A will or testament is a legal declaration expressing the wishes of a person, containing the names of one or more persons who are to manage his estate and provide for the transfer of his property after his death. The person who prepares such a will is known as the testator.
A Will is a very important legal document as it denotes the wishes of a person who cannot be consulted again. If there is no will, or the will is found not to be valid, the property will be divided and transferred as per the rules of intestate succession. The Will contains a nomination of a person as the ‘executor’ of the Will. This executor will have to follow the instructions given in the Will and distribute the property in it accordingly. When a Will is being written, correct procedure requires the presence of witnesses.
The person who carries out the wishes of the testator after his demise is known as the executor.
Is it possible for the executor also to receive property or will it be a conflict of interest?
The Executor may be named as a beneficiary in the Will, but it is not allowed for a beneficiary to also be a Witness to the Will.
PROBATE
Probate: A probate means a copy of the Will, certified under the seal of a competent Court. This seal of the Court gives power to the person who is named as the executor in the Will, to carry out the instructions written in the Will and distribute the property within. It is the official evidence of an executor’s authority.
Does every Will need a Probate?
After the death of the person concerned, a proceeding may be initiated in court to determine the validity of the will that the testator may have created, known as a probate proceeding, which will satisfy the legal requirements. In most cases, during probate, at least one witness is called upon to testify or sign a “proof of witness” affidavit. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.
The suit is not barred by Res Judicata because the Probate only grants validity to the form of the Will, not the substance.