The property may be ancestral or self-acquired property may devolve in two ways i.e., a) By testamentary succession i.e., the deceased died by executing will bequeathing his properties to specific heirs and b) By intestate succession when the deceased died intestate without executing Will or any deeds. The transmission could either be by way of a will or by the operation of law. The Indian Succession Act, 1925, is the principal legislative measure in India dealing with the substantive law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindus and Muslims. In this article, we shall study about the executor of the will in the case of testamentary succession. In this article, we shall study an executor of a will under the Indian succession act, 1925.

Testamentary Succession:

Testamentary succession or disposition by wills refers to a case when the deceased leaves behind a will and the devolution of property take place as per his wishes expressed in his last will. A will is the expression by a person of wishes which he intends to take effect only at his death. In order to make a valid will, a testator must have a testamentary intention to which he gives deliberate expression to take effect only at his death.

Executor of a Will:

The term executor is defined in S. 2(c) of the Indian Succession Act, 1925, as a person to whom the execution of last will of a deceased is confided by the testator. The executor should possess all the competency required by the testator himself.  The executor derives his powers from the Will. The appointment of the executor may be expressed or implied. The executor is appointed by the testator himself during the making of the Will and the will contains an express provision for the appointment of one or more executors.  In some cases, however, the appointment of an executor may be implied, and in such cases, he is called an executor by implication or an executor according to the tenor of the will. It is to be noted that probate can be granted only to an executor who is appointed by the testator’s will. It may also be noted that. under S. 211 of the Act, the executor or administrator of a deceased person is his legal representative for all purposes

Competency of the Executor:

• The executor should possess all the competency required by the testator himself.  
• All persons capable of executing a Will can be executors
• He/She should be mentally sound and as per as possible major.
• Even a minor can be appointed as an executor but probate cannot be granted to the minor until he attains majority (section 223, Indian Succession Act). In the meanwhile, the legal guardian of the minor can obtain Letters of Administration with the Will annexed (section 224, Indian Succession Act). An application for the grant of Letters of Administration by a minor through his natural guardian is maintainable in law, although no one was made an executor under the Will.

Duties of Executor:

• Under S. 316 of the Act, it is the duty of an executor to provide funds for the performance of the necessary funeral ceremonies of the deceased in a manner suitable to his condition and status if he has left property sufficient for the purpose.
• It is the duty of the executor to get probate granted from the Court.
• Expenses incurred in obtaining probate and costs incurred for initiating any judicial proceeding needed to administer the estate shall be paid after the expenses for funeral and death-bed charges are paid.
• Under Ss. 317 and 318of the Act, an executor within six months from the grant of probate must make an inventory containing a full and true estimate of all the property in his possession and all the debts and credits due to him in his capacity as an executor. It is then the duty of the executor to collect all the debts owing to the deceased, pay off all the legal liabilities payable by the deceased, and thereafter administer the estate (i.e. property) of the deceased according to the wishes of the testator as reflected in his will. The High Court may prescribe the form in which an inventory or account under this section is to be exhibited. If an executor, on being required by the Court to exhibit an inventory or account under this section, intentionally omits to comply with the requisition, he shall be deemed to have committed an offence under section 176 of the Indian Penal Code (45 of 1860.) The exhibition of an intentionally false inventory or account under this section shall be deemed to be an offence under section 193 of that Code.
• Under S. 319 of the Act, the executor shall collect, with reasonable diligence, the property of the deceased and the debts that were due to him at the time of his death.\
• Under Ss. 320 – 330 of the Act, the executor should make all disbursements to the beneficiary of wills after paying all the expenses, debts as prescribed in these sections and as sequence given in the Act.

Powers of Executor:

• As per the provisions of Section 305 of the Act, an executor has the power to sue on the deceased testator’s behalf with respect to all cause of action surviving the deceased and for recovery of all debts that were due to the deceased testator while he was alive.
• According to Section 308 of the Act, an executor can incur expenses for the administration and proper care of the deceased testator’s property till the final disposal. An executor can also incur expenses on religious, charitable and other objects, and for carrying on reasonable improvements on the property with the sanction of the High Court.
• According to Section 307 of the Act, an executor has the power to dispose of the property of the deceased testator so vested in him as per the provisions of Section 211 of the Act in a manner such executor deems fit or necessary. With the sanction of the High Court.

Sometimes, a testator does not name any person as an executor, but assigns to him duties which are more or less the duties of an executor. In that case, such a person can be treated as a constructive executor. However, in such cases, it should be shown that the testator intended to impose on such a person the essential duties of an executor, namely, the obligation to collect his assets and pay his funeral expenses, debts and legacies.

In Kuppayammal v. Ammal, (1899) 22 Mad. 345 case, where an executor was not appointed under the will, but the testator left behind directions to his mother to pay certain debts out of certain funds, the Madras High Court held that this did not make the mother an executrix of the will.

Conclusion:

The term executor is defined in S. 2(c) of the Indian Succession Act, 1925, as a person to whom the execution of last will of a deceased is confided by the testator. The executor should possess all the competency required by the testator himself.  The executor derives his powers from the Will. an executor can incur expenses for the administration and proper care of the deceased testator’s property till the final disposal. He has power to get these expenses reimbursed.

Test Your Understanding:

1. What is a testamentary succession?
2. Who is an ‘Executor’ under the Indian Succession Act, 1925?
3. What are the duties of executor under the Indian Succession Act, 1925?
4. What are the powers of executor under the Indian Succession Act, 1925?
5. What are the competencies of executor under the Indian Succession Act, 1925?
6. Write short note on of executor under the Indian Succession Act, 1925.

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