Probate Of Will

• What Probate Of A Will is

  A will is a legal document that outlines the final wishes, decisions or instructions of an individual upon his or her death. According to Section 2 of the Indian Succession Act, 1925, Probate means "the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator". It is nothing but a decree passed by a competent court declaring the legality/correctness and genuineness of the Will of the deceased.

  Probating Of Will, How Far Essential

  Under Section 219 of the Indian Succession Act, 1925, if the deceased has died intestate and was not a person belonging to any of the classes referred to in Section 218, i.e, Hindu, Mohammedan, Buddhist, Sikh or Jaina or an exempted person, those who are connected with him either by marriage or by consanguinity are entitled to obtain Letters of Administration of his estate and effects in the order and according to the rules framed in this section. Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims, etc. are not bound to apply for letters of administration (Probate). It is optional and not mandatory for these persons to seek probate of the Will.

  Advantages Of A Probated Will

  Probate of a Will when granted, establishes the genuineness of Will from the death of the testator and renders valid all intermediate acts of the Executor as such will.

  Legal Consequences, If the Will Is Not Probated

  If the Will which is required to be probated, under the Indian Succession Act, 1925, if not probated, has no legal sanctity and binding force.

  Time Frame Within Which A Will Is To Be Probated

  There is no limitation for grant of letters of administration or probate. Where the estate is in the possession of administrator there is no question of the Probate Court delivering the possession to him but the probate will be decisive only with regard to the genuineness of the Will propounded and the right of the executor to represent the estate.

  The Appropriate Court To File The Suit For The Probate Of A Will

  Principal Court of Original Jurisdiction, i.e. the District Judge. The High Court also enjoys concurrent jurisdiction to grant probate of the Will.

  Who Can Apply For The Probate Of A Will

  According to Section 222 of the Indian Succession Act, 1925, Probate shall be granted only to an Executor appointed by the Will. The appointment may be expressed or by necessary implication. In the absence of the Executor being named in the Will, the Legatees or the Beneficiaries under the Will could also seek probate of the Will.

  The Check List Of The Documents To Be Submitted For Obtaining The Probate

  • Original Will of the deceased.

  • Title Deeds pertaining to the immovable property mentioned in the Will, if any.

  • Documents pertaining to the movables, mentioned in the Will, if any.

  Court Fee Payable For A Probate

  Suits Valuation Act, 1958& Other Applicable local laws determine how much CourtFees will be levied on probate application.

  Procedure Involved For Obtaining A Probate

  A petition has to be filed before the Principal Court of Original Jurisdiction or before the Hon'ble High Court under Section 374 of the Indian Succession Act. The Court in question will issue the court notices at the initial stage and a paper publication will be caused besides a Gazette publication as well. In case such a petition is contested, it will be converted into a regular suit and upon contest the same will be disposed off, by delivering the judgment and decree, in accordance with law.

  Objections To Grant Of Probate

  Simply being unhappy about a will or disappointed isn’t a good enough reason to challenge it. There must be a valid legal ground(s) for the objection. The typical objections are:

  1. The will was not properly drawn, signed, or witnessed, according to the legal requirements;

  2. The decedent lacked mental capacity at the time the will was executed;

  3. There was fraud, force, or undue influence; or

  4. The will was a forgery.

  Since the judgment in a probate petition is a judgment in rem, therefore, any reasonable person having some reasonable locus can always object to the grant of the probate because a probate court has to satisfy its conscience for grant of a probate.- Case Law: Krishan Lal Dilawari Vs. State, FAO No. 100/1994(02/04/2014), 2014(210) DLT 439 [Valmiki J. Mehta, J.]

  Precautions The Testator Got To Take

  If there is even the remotest possibility of a will contest, an experienced probate lawyer is a must to help you prepare your will. If you tell the lawyer you suspect challenges will be made, there are several things your lawyer can do. She or he may ask a physician to evaluate your mental competence- and perhaps serve as a witness when you sign your will. Your lawyer may videotape your execution of the will (signing before witnesses), and she or he may put in provisions that would give anyone challenging the will nothing at all should the challenge fail. Will contests are expensive, both for the person bringing the challenge and for the one who defends. All the heirs are therefore bound to suffer. For this reason, it’s best to do everything possible to avoid a will challenge if you know someone will be disappointed or angry about the provisions of your will.

  Points To Remember

  • It has to be proved by credible evidence that the signatures on the Will are of the testator;

  • The testator signed in the presence of the attesting witnesses and the attesting witnesses signed in the presence of the testator. And, if none of the attesting witnesses depose then, the signatures of the attesting witnesses must also be shown indubitably to be those of the attesting witnesses in addition to the aspect that the signatures of the testator have to be proved as that of the testator- Case Law: Darshan v. Raj Kumar, FAO 562/2003(07/07/2014), 2014(144) DRJ 350 [Valmiki J. Mehta, J.]

  • Photocopy of Will can’t not be probated under Section-237 of the Indian Succession Act.

  Relevant Provisions Of Law

  • Section 213, 219, 222, 276 & 374 of the Indian Succession Act.

  • Suits Valuation Act, 1958.

  Judgments

  • Limitation- right to sue accrues depending upon the facts of each case- mere death of testatrix cannot be said to be arising of a cause of action for filing of probate petition-Case Law: Rajesh Sharma v. Krishan Kumar Sharma, FAO 641/2002(31/03/2014), 2014(142) DRJ 660: 2014(212) DLT 562 [Valmiki J. Mehta, J.]

  • Lack of details of valuation in Will, Effect of- Held, final valuation is obtained at the time of grant of letters of administration and merely because the Will does not contain the details of valuation cannot mean that probate cannot be granted on such a Will- Rajesh Sharma v. Krishan Kumar Sharma, FAO 641/2002(31/03/2014), 2014(142) DRJ 660: 2014(212) DLT 562 [Valmiki J. Mehta, J.]

  • Requirement to summon advocate present at time of registration or draftsman of Will, Scope- Held, when Will is proved through testimony of one attesting witness, it was not necessary to have summoned Advocate who was present at time of registration of the Will before Sub-Registrar and nor was advocate who drafted the Will required to be called in the witness box- Rajesh Sharma v. Krishan Kumar Sharma, FAO 641/2002(31/03/2014), 2014(142) DRJ 660: 2014(212) DLT 562 [Valmiki J. Mehta, J.]

  • Lack of objection from second attesting witness, Effect of -- Held, only one attesting witness was required to prove the Will, the very fact that other attesting witness did not file any objection shows that there was no need of calling of this second attesting witness- Rajesh Sharma v. Krishan Kumar Sharma, FAO 641/2002(31/03/2014), 2014(142) DRJ 660: 2014(212) DLT 562 [Valmiki J. Mehta, J.]

  • No objection of other legal heirs- No impediment in granting probate- Ashok Dhar v. State, Test. Cas. 45/2013(05/02/2014), 2014(6) AD(Delhi) 1 [A.K. Pathak, J.]

  The captioned subject is complex by its very nature. We, therefore, always encourage our visitors& Clients to seek an independent legal advice by our empanelled lawyers. In such Cases, our lawyers devise most appropriate legal recourse for our Clients after examining the related provisions of law, i.e. Indian Succession Act, 1925, The Suits Valuation Act, 1958, The Code of Civil Procedure, 1908, The Evidence Act, 1872, Other relevant Acts & Judgments and Citations of the Hon’ble Supreme Court Of India and the High Courts.Even otherwise, the question as to how to apply the laws, judgments and citations is rather more complex, as it involves a thorough examination of substantial laws, procedural laws and Court precedents in a given set of facts and circumstances.

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