Answer By law4u team
If a will is lost, the legal process becomes more complex, but it does not necessarily prevent an inheritance claim from proceeding. The Indian Succession Act provides guidance on how to handle situations when a will is lost or unavailable.
1. Effect of a Lost Will on Inheritance Claims
If a will is lost, it can delay or complicate the inheritance process, but it does not completely prevent it. The person claiming the inheritance would need to establish the existence and contents of the will through alternative means.
Indian law requires that a will must be proven before a court, and without the original document, the executor or the legal heir must prove its validity through secondary evidence, such as copies of the will or testimonies from witnesses.
2. Proving the Lost Will
Secondary Evidence:
If the original will is lost, the claimant can submit secondary evidence (like a copy of the will, or a version of the will that was registered). If a copy is available, it can be presented as evidence before the court.
Witness Testimonies:
The witnesses who were present during the execution of the will can testify to the contents and validity of the will. They can provide testimony about the deceased's intentions and the will's authenticity.
Affidavit of the Executor:
The person named as the executor in the will can submit an affidavit detailing the contents of the will and the circumstances under which the will was lost. If the executor has administered the estate or has knowledge of the contents of the will, their testimony will carry weight in court.
Intestate Succession:
If the court is unable to verify the will’s contents or authenticity, the property will be distributed according to intestate succession laws. This means the estate will be divided among the legal heirs as per the provisions of the Indian Succession Act or the applicable personal laws (e.g., Hindu Succession Act for Hindus).
3. Filing a Petition for Probate
If the original will cannot be found, and there is enough secondary evidence (e.g., a copy of the will), the executor or legal heir may file a petition for probate in the court. This petition is a formal request to the court to validate the will and grant probate (official recognition of the will).
If the will is not found or cannot be proven, the court may proceed with the estate administration as though the decedent died intestate, in which case, the distribution of assets will follow the rules for intestate succession under the Indian Succession Act or the respective personal law applicable.
4. Court Procedure for Lost Will
Step 1: Filing an Application:
The person who intends to claim inheritance must file an application in the probate court stating the fact that the will has been lost, but they wish to proceed with the claim based on available evidence.
Step 2: Submitting Secondary Evidence:
In the absence of the original will, the claimant must submit a copy of the will or other supporting evidence such as witness affidavits or any written document that may substantiate the claims made in the will.
Step 3: Court’s Evaluation:
The court will evaluate the validity of the secondary evidence presented. If the court is convinced of the will’s authenticity and contents, it may order probate to be granted.
Step 4: Intestate Distribution (if no evidence):
If the court is unable to find sufficient evidence of the will's authenticity, the property may be treated as though the deceased person passed away intestate, and the inheritance will be distributed among the legal heirs according to the applicable laws.
5. What Happens if No Will is Found?
If there is no valid will or the court determines that the deceased died intestate (without a valid will), the estate will be distributed according to the laws of intestate succession:
- For Hindus, the Hindu Succession Act, 1956 will apply.
- For Muslims, the inheritance will be governed by Muslim personal law.
- For Christians, Indian Succession Act applies, and similarly for Parsis.
In intestate succession, the heirs (spouse, children, parents, etc.) will inherit the property in accordance with the rules of succession applicable to the individual’s religion.
6. Precautions to Avoid the Loss of a Will
To avoid complications arising from a lost will, it is advisable to:
- Keep the will in a safe place, such as a safe deposit box at a bank, or with a trusted lawyer.
- Register the will with the Registrar (if not already done), as a registered will is more easily accessible and has a reduced risk of being lost.
- Inform family members or the executor about the location of the will to ensure it can be found after the testator’s death.
7. Example
- Example 1: Mr. A made a will but lost the original copy before his death. He has a photocopy of the will, and the witnesses to the execution of the will are still alive. His son files a petition for probate and presents the copy of the will and witness affidavits in court. The court grants probate, and the will is honored.
- Example 2: Mrs. B made a will, but after her death, the will was found to be missing. Her children try to prove the contents of the will using an old photocopy of the will, but there are no witnesses left. The court cannot validate the will, and the estate is distributed among the legal heirs as if she died intestate.
Conclusion:
If a will is lost, it does not automatically invalidate an inheritance claim. The claimant can still pursue the inheritance by presenting secondary evidence such as a copy of the will, witness testimonies, or affidavits. If sufficient evidence cannot be provided, the estate may be administered according to intestate succession laws. To avoid future complications, it is important to keep the original will in a safe place and inform relevant parties about its location.
