Executor

Introduction
The term “executor” sits at the heart of succession practice. Practically, an executor is the person named in a testator’s will to carry out the directions contained in it: marshal assets, pay debts and liabilities, manage estate affairs, obtain probate (where required), and distribute the residue in accordance with the will. For practitioners, the word is not merely descriptive — it triggers specific statutory procedures (probate/letters of administration), fiduciary obligations, potential personal liability, and litigation flashpoints (capacity, undue influence, forgery, revocation, renunciation, and executor’s accounts).

Core Legal Framework
Primary statute
– Indian Succession Act, 1925 — the Act governing wills, probate and letters of administration in most of India. For practitioners the most relevant portions are:
– Part III (Wills) — generally Sections dealing with the making and validity of wills (see broadly Sections 59–108).
– Part VIII (Probate, Letters of Administration and matters ancillary thereto) — generally dealing with probate, letters of administration, powers and duties of executors/administrators (see broadly Sections 276–318).
(Practitioners must consult the Act’s table of contents in their printed or online copy for precise section numbering applicable to their matter and any subsequent amendments.)

Other relevant legal instruments and rules
– High Court rules: Probate and letters of administration are governed by rules and practice directions of the relevant High Court. These rules govern procedure (filing, caveats, valuation, security, grant, oath, accounts).
– Indian Evidence Act, 1872: For proving a will (attestation, signature, handwriting, execution circumstances).
– Civil Procedure Code (where applicable) and Limitation Act: Procedural and limitation questions that arise in contested matters.
– Tax laws and succession duties (if applicable) affect estate administration.

Key concepts and distinctions (statutory practice)
– Executor vs Administrator: An executor is named in a valid will; an administrator is appointed by court where there is no executor or where executor does not take probate. An executor with the will annexed acts with the authority conferred by the will; an administrator derives authority from the court’s letters of administration.
– Probate and letters of administration: Probate is the court’s seal of approval on a will and authorises executors to act. When no executor applies (or the executor renounces), the court may grant letters of administration to a person entitled by law.
– Executor de son tort: A person who intermeddles with estate affairs without legal authority may be treated as an executor de son tort and incur liabilities.

Practical Application and Nuances
Appointment and acceptance
– Practical step: Upon testator’s death, the nominated executor should apply for probate in the appropriate High Court (where estate is situated or as per local practice) — supported by original will and death certificate. If the executor declines, they may formally renounce in prescribed form; renunciation is often irrevocable and should be carefully considered (and accepted in writing by the court).
– Security and bond: High Court rules commonly require security or bond from an executor unless the will exempts the executor from giving security or the court dispenses with it.

Duties of an executor (day-to-day)
– Identify and secure estate assets (bank accounts, land, investments, business interests).
– Obtain certified copies of title documents; file for mutation only when proper authority (probate/letters) obtained or after requisite court orders.
– Pay funeral and administration expenses and testator’s debts (priority before legacies where estate insufficient).
– Realise assets (sell where necessary and permitted by will and by law) — ensure sales have sanction where required by court or will; maintain records.
– Maintain accounts and produce them when called upon — keep full books, vouchers and bank statements.
– Distribute residuary estate according to will; ensure discharge receipts and releases are obtained from beneficiaries.
– Respond to statutory notices (tax, municipal dues etc.) and protect estate against third-party claims.

Proving the will — common contested issues and how they play out
– Testamentary capacity: Counsel should be ready to meet the four-fold test (understanding nature of property, understanding the effect of the disposition, knowledge of the natural objects of bounty, and absence of any disorder of mind influencing the disposition). Banks v. Goodfellow (English common law decision) remains a widely-cited articulation of the test for capacity that Indian courts frequently apply by analogy. Practical proof: contemporaneous medical records, testimony of attesting witnesses, demeanor evidence, handwriting experts where required.
– Execution and attestation: Original will is primary. Proof includes signature verification, witness testimony (attesting witnesses must be competent and able to depose to the facts of execution), and contemporaneous documents. If the will is a holograph, additional scrutiny on handwriting and signature is required.
– Undue influence/forgery/fraud: Plead specifics — identification of who stood to gain, relationship of influence, timing, suspicious circumstances (e.g., sudden, uncorroborated changes near death). Cross-examination strategy: impeach credibility of attesting witnesses, probe medical condition and hospital contacts, expose inconsistencies in alleged procedural compliance.
– Revocation: Look for subsequent wills, codicils, burning, tearing, or express revocation clauses. Onus may be on proponent to establish will’s validity and absence of revocation.
– Venue and jurisdictional strategy: File in the High Court with jurisdiction over the estate property; if the estate is multi-jurisdictional, consider procedure for obtaining parallel grants and possible recognitions elsewhere.

Practical examples
– Example 1 — Contested probate on grounds of undue influence: Draft a tightly particularized pleading identifying the alleged influencer, the nature of the relationship, precise acts constituting undue influence, and link these acts to the making of the will. Move promptly for disclosure of medical records, CCTV (if available), mobile call records, and get witness statements from attending nurses/doctors.
– Example 2 — Executor seeking to sell immovable property to pay debts: Check will’s terms (does it prohibit sale?), obtain court permission if the will is silent and sale is necessary, or obtain interim orders for preservation/sale to avoid diminution of estate value. Always seek explicit court sanction where major asset sales will prejudice residuary beneficiaries.
– Example 3 — Executor claiming indemnity: Executors are entitled to be indemnified out of estate assets for bona fide acts; they should maintain contemporaneous records and seek court directions where the action is novel or contentious.

Liabilities and remedies
– Personal liability: Executors who misapply assets, intermeddle improperly, or fail to account may be personally liable. A beneficiary can seek an account, injunctions, removal of executor, surcharge, or other equitable relief.
– Removal: Courts may remove executors for misconduct, incapacity, or persistent refusal to act.
– Executor de son tort: A person who assumes control without authority can be treated as an executor and sued for breach; conversely, a de facto executor may also seek a lien for expenses honestly incurred.

Practical drafting and litigation tactics
– Will-drafting tips for practitioners representing testators: clearly name executors and alternate executors; specify powers (sale, mortgage, compromise lawsuits); provide for bonding or exemption from security; provide for step-in trusteeship; anticipate potential conflicts among beneficiaries.
– For contesting or defending wills: keep pleadings tightly particularized; use preliminary applications (discovery, medical record preservation, witness subpoenas); deploy handwriting experts judiciously; consider mediation between beneficiaries where practical to avoid long probate litigation.
– Time-management: Probate litigation can be protracted. If urgent liabilities exist, seek interim reliefs (preservation of assets, injunctions, appointment of a temporary administrator ad litem, permission to realise perishable assets).
– Evidence management: Originals, authenticated copies, bank statements, income-tax returns, property valuation reports, and contemporaneous correspondence are crucial. Preserve digital evidence and create a chain of custody.

Landmark Judgments
– Banks v. Goodfellow (1870) 5 QB 549 (English decision): The classic test for testamentary capacity — widely cited by Indian courts — requires, inter alia, that the testator understand the nature and effect of the act and have no disease of mind affecting the testamentary act. Indian judges regularly apply the principle when assessing capacity.
– High Court guidance and precedents: Probate practice is heavily rule-based at the High Court level; practitioners must consult leading High Court authorities in the relevant jurisdiction on points such as the form of petition, affidavit requirements, security, renunciation, and the court’s supervisory powers. (Practical note: cite and rely on the controlling High Court’s chartered pronouncements and practice directions — they often determine day-to-day outcomes more than any single Supreme Court dictum.)

Strategic Considerations for Practitioners
For the executor’s counsel
– Advise on prompt application for probate to obtain legal authority and prevent interim interference.
– Preserve assets immediately: secure property, insurance, and bank accounts; seek restraining orders where appropriate.
– Maintain careful documentation: contemporaneous inventory, receipts, bank lodgements, correspondence, minutes of meetings with beneficiaries.
– Consider mediation among beneficiaries to limit costs and delays.
– When in doubt, seek the court’s directions: an executor acting under court directions obtained in advance is far less exposed to subsequent personal liability.

For challenger’s counsel
– Focus on narrow, strong points rather than scattergun attacks. Mass allegations of incapacity or fraud without particulars will be dismissed.
– Use interim relief to preserve the status quo and prevent dissipation until the contest is resolved.
– Consider challenging the grant itself (if already made) by seeking revocation of probate where there is fresh evidence of forgery, fraud, or mistake.

Common pitfalls to avoid
– Executor acting without probate: Taking major steps (sale of immovable property, alteration of title) without the grant can expose the executor to personal liability or set aside such acts as void.
– Failure to give security when required by local rules: courts will not be impressed by unilateral claims of indemnity.
– Vague or unparticularized pleadings in challenges: Courts expect precise particulars in allegations of undue influence and fraud.
– Ignoring tax and statutory obligations: executors cannot assume they will only deal with civil distribution — income-tax and other statutory liabilities must be managed.

Checklist for executors (practical)
– Locate and preserve original will; obtain death certificate.
– Check for codicils or later wills; inform all beneficiaries known.
– Apply for probate or renounce formally and in writing if declining.
– Open an estate account; stop/dispose of testator’s personal bank mandates correctly.
– Secure and insure assets; obtain professional valuations.
– Catalogue creditors and serve notices; settle valid debts in proper order.
– Keep beneficiaries informed and obtain receipts upon distribution.
– File accounts when required; seek court approval for final distribution.

Conclusion
“Executor” is a designation that carries significant procedural, fiduciary and potential personal liabilities. For practitioners the skill is not just reading a will: it is managing the statutory regime (probate/letters of administration), anticipating challenges (capacity, undue influence, forgery, intermeddling), preserving estate assets, and ensuring clean accounting and distribution. Mastery of local High Court probate practice, meticulous evidence management, early interim reliefs when necessary, and precise pleadings are the practical tools that distinguish successful executor litigation and estate administration from expensive, avoidable pitfalls.