Will and Probate

BY Accommodation Times Bureau
By S. Selvakumar, Advocate

People have fair knowledge of will, which is defined in Indian Succession Act 1925 as “The legal declaration of intention of the testator, with respect to his property, which he desires to be carried into effect after his death. Testator means the owner of the property who makes the Will. The intentions of testator as to how his properties are to be succeeded are detailed in will.
The development of properties as directed in the Will takes place after the death of testator, otherwise called as author of Will. The Testator may also appoint some person to carry out the directions and his requests in the Will. Such a person is called executor. If the testator does not appoint any executor the competent authority, the court may appoint a person to administer the estate of the testator, who is called as administrator. The persons who are entitled to the benefits under the Will are called Legatees.

Probate is defined in Indian Succession Act, as “a copy of Will certified under the seal of a court of competent Jurisdiction with grant of administration to the estate of testator”. This is the official proof of the Will. Application for probate have to filed under section 222, and 276 of Indian Succession Act to probate division of High Court. The Petition for grant of probate shall also be verified by at least one of the witnesses to the will if procurable. However, this condition is recommendatory and not mandatory.

Probate will be issued only to the executor appointed in the Will. If there is no provision for appointment of executor in the Will, the court will grant only letter of administration. The Will is considered to be a genuine one after the probate is granted by probate division of High Court. It binds not only the persons, who are the parties, but also others, who are not parties to the probate proceedings.

Probate will not be granted to minors, persons of unsound mind, to any association of Individuals unless it is a company, which satisfies the rules, conditions prescribed and published in official gazette by the State Government.

When the Will is proved, the original is to be deposited in the registry of court. The court will issue a copy of the Will with a certificate of having it made out under the seal of the court. This copy issued to the executor is called probate.

If a codicil is discovered after the grant of probate a separate probate exclusively of such codicil will be granted to the executor provided the discovered codicil does not appoint another executor. Codicil is an addition to the will, a supplement to the Will. It can be made any time after the Will is made, during the life time of testator.

A codicil contains anything, which the testator wants to add, any explanation, cancellation and even cancellation of the Will. Codicil is part of main Will and needs to execute with the same formalities as that of a Will and must be proved with the Will.

If the testator appoints a different executor in codicil, which is discovered subsequent to grant of probate, the probate of the Will stands cancelled. A new probate of both Will and codicil has to be granted together.

If the Will is lost or misplaced by accident and if a copy of the Will is available the probate may be granted until original Will is produced. If the Will exists and the possessor refuses to give the Will or the possessor is abroad, the court may grant probate on the copy of the draft Will until the original or authenticated Will is produced.

The Probate of the Will is issued in common from, if not disputed and it will be in solemn from if disputed or irregular.

Where probate is required?
There is much confusion as whether all Wills executed by Hindus, Muslims, Christians, Buddhists, Sikhs, Jains, require probate. Section 57 and read with section 213 of Indian Succession Act clears this confusion. Both the sections are reproduced along side.

Thus the obtention of probate, and letters of administration are mandatory to establish the right as executor or legatee. But the application of the sections is restricted. Act specifically exempts Mohammedans and Indian Christians. Indian Christians means a native of India, who is or in good faith claims to be of unmixed Asiatic descent and who professes any form of Christian religion.

In case of Hindus, Buddhists, Jains, Sikhs the provision is applicable only to the Wills made after 01.09.1870 within the territories which at said date were subject to the lieutenant governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Madras or Bombay and to the Wills made outside those territories, if the immovable properties referred in the Will falls within those territories.

Provision is not applicable to Wills made by Hindus, Buddhists, Sikhs, Jains outside these territories or if the immovable properties referred in will are situated outside these territories. Probate of Will is must in Madras, Bombay and Calcutta. In moffusal areas it is optional.

The obtention of probate is also applicable to Parsis, if the Wills are made by parties dying after the commencement of Indian Succession Act, within the local limits of ordinary original Civil Jurisdiction of High Courts, of Calcutta, Madras, and Bombay or if the immovable properties referred in Will are situated in those territories.

As stated earlier, the probate will be granted only to the executor appointed in the Will. Such appointment may be expressed or by necessary implication. Suppose if the Will narrates that Mr. Krishna shall be the executor, if Rama does not, Rama shall be the executor. If several executors are appointed, the court may grant probate to all the them simultaneously or if it is not possible to grant probate simultaneously it may be granted at different times.

In case where probate is granted to several executors and if any one of them dies, the full representation of testator rests on the surviving executors. If the executor appointed, renounces or does not accepts to be executor. Within the time limited for acceptance, the Will may be proved and letters of administration with a copy of the Will annexed may be granted to person, who would be entitled to administration.

Death of Executor
The Act provides for various contingencies. If the testator who has made the Will.

(A) Does not appoint an executor.
(B) Or the appointed executor is legally incapable to act or executor died before the Will is proved.
(C) Or has died after having proved the Will but before carrying out the directions of the testator.
The court may admit a universal or residuary legatee to prove the Will and letters of administration may be granted to him.
If the author of the Will bequeaths all his properties to a single person, such a person is called universal legatee. After paying all debts, charges and development to legatees, as per the Will anything that remains is called residue.
The testator may bestow such residue to a particular person who is called residuary legatee. In certain cases the residuary legatee may die before the properties of the testator are devolved as per Will. The representative of the residuary legatee has the same right to administration as that of a residuary legatee.
The executor may be appointed for any limited purpose; the relevant probate shall also be for such limited purpose.
Revocation of Probate
The grant of probate may be revoked on following grounds.
The proceedings to obtain the grant were defective in substance.

The grant was obtained by fraud, by making false suggestions.

The grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently.

The grant has become useless and inoperative through circumstances.
The person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with prescribed law or exhibited inventory of account which is untrue in material respects.
District Judges also have Jurisdiction to grant and revoke probates in all cases within his district.
Indian Succession Act 1925

Section 57
Application of certain provisions of part to a class of Wills made by Hindus, etc. – the provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein apply:

(A) To all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of September 1870.
Within the territories which at the said date were subject to the Lieutenant-Governor of Bengal
Within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay;
(B) To all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits;
(C) To all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b): Provided that marriage shall not revoke any such Will or codicil.
Section 213
Right as executor or legatee when established:-

1. No right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
2. This section shall not apply in the case of Wills made by Mohammedans (or Indian Christians), and shall apply:

(i) In the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57;
(ii) And in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Will are made outside those limits, insofar as they relate to immovable property situate within those limits.
Probate Not Required
Wills made by:
1. Mohammedans.
2. Indian Christians.
3. Hindus, Buddhists, Sikhs, Jains.

A. Outside the territories of Lieutenant Governor of Bengal as on 01/09/1870.

B. Outside the local limits of ordinary original civil jurisdiction of High Court of Madras, Bombay.

C. Wills in respect of immovable properties outside the above limits.

Dying after the commencement of India Succession Act 1962 and Wills made outside the local ordinary original civil jurisdiction of High Courts at Calcutta, Madras, Bombay.
Will in respect of immovable properties situated outside the above limits.

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4 thoughts on “Will and Probate

  1. i would like to know whether there is any time limit for probating a will. does law of limitation apply to probating a will after the death of the testator?

  2. I want to know whether the stipulated time period for probating a will after the death of the testator is applicable to the Christian undivided property in Kolkata or not?

  3. Mother died in Mar 08.She made a WILL in jul 07,when she wasn’t keeping well and on being coerced by one brother X, who was staying with her.He got the prime immovable property willed to himself.She realised her mistake a few mnths later n wrote a statement that any important paper signed by her before this date be treated null and void.In 2008, mutation was effected in the joint names of all brothers n same is current.Brother X was in possession of the said WLL and has now moved High court for obtaining Probate,disregarding the later Statement.We ,the other brothers wish to contest the WILL’s probate.Bother X had the cake all his life n now wants to eat it alone.What option do other brothers have n what wud the process be.Brothers are in receipt of the courts notice on the Testamery case.

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