What Is Probate?

Probate is a legal process that involves proving a will in court to confirm its validity. It ensures that the assets, shares, and liabilities of the deceased individual are distributed according to their wishes as laid out in their will.

According to Section 2(f) 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 to the estate of the testator.”

The person who makes a will expresses his wishes to be executed after his death by certain persons as named in the will. The persons named in the will to execute it are called its executors. An executor is the only one who can be granted the will.

Probate of a will establishes the will from the death of the testator and renders all the acts of the executor valid. The Probate will come under the jurisdictional matter of the Indian Succession Act, of 1925.

Applicability Of Probate In India

Section 57 of the Indian Succession Act, of 1925 lays down the application of Probate in India. Probate of will is necessary for the following situations:

1. A will that is executed within the limits of the State of West Bengal, Chennai and Mumbai

2. The will is made by a Hindu, Jain, Sikh or Buddhist residing in West Bengal, Chennai and Mumbai.

3. The will deals with movable and/or immovable property situated in West Bengal, Chennai or Mumbai. 

The proviso to this Section lays down that marriage shall not revoke any will. Apart from the aforementioned situations, the probate of will is not necessary or mandatory. However, it is recommendatory to obtain probate of the will, so that there is proof to show that the will is valid to its essence.

In Ravinder Nath Agarwal v. Yogender Nath Agarwal, it was observed by the court that by section 213(2)(i) read with Section 57 of the Act, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a will, applies only to wills made by Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary civil jurisdiction of a certain High court.

Legal Requirements Of Probate

  1. The will must be in writing and signed by the testator
  2. While making the will, the testator should be of sound mind
  3. The will of the testator must be attested by two or more witnesses.

In Meena Pradhan & Ors v. Kamla Pradhan & Anr, the SC laid down that the formalities as laid down in Section 63 of the Indian Succession Act must be fulfilled, to ensure the validity of the execution of the will.

Who Is An Executor?

According to Section 2(c) of the Indian Succession Act,1925, ‘executor means a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided’.

Probate shall only be granted to an executor appointed by will. His appointment may be implied or expressed. If a set of wills is determined and one of them dies, the entire representation of the testator belongs to the surviving executor or executors. In Mahendra Harilal Parekh v. Meenaben Hirenbhai Parekh, the Gujarat HC held that Probate shall be granted only to an executor appointed by will.

Eligibility Or Qualification Of The Executor

Section 223 lays down the qualification of the executor.

  1. The Executor must not be a minor
  2. He or She must not be of unsound mind
  3. to any association of individuals unless it is a company that satisfies the conditions as prescribed by the State government by notification in the official gazette.

Only a court of competent jurisdiction in India can grant probate of the will under which the right is claimed. No person other than the executor himself may have the power to sue or prosecute any suit, or otherwise act as representative of the deceased, throughout the State in which the probate may be granted.

Renouncement Of The Executorship

According to Section 230, the executor may make the renunciation of his or her executorship either orally in the presence of the judge or in writing by the executor himself or herself. However, if he or she renounces or fails to accept an executorship within the stipulated time for the acceptance or refusal, the will may be granted to the person who would be entitled to administration in case of intestacy.

In MR Mohan Kumar & Others and NIL, the Karnataka HC held that probate can be granted on a plea made by the beneficiary named in a will, in case no executor has been named.

How can Probate be obtained?

According to Article 137 of the Limitation Act, of 1963, a probate petition must be filed within the limitation period of 3 years from the day of the death of the testator.

The Procedure Of Procuring Probate

  1. Application by the executor: The executor is supposed to apply to probate petition in the court of District Judge after 7 days of the death of the testator. This petition has to be filed following the Code of Civil Procedure, 1908.

Section 276 of the Act provides the contents that need to be included in the petition of probate:

  • The time of the testator’s death
  • that the writing annexed is his last will
  • that it was duly executed
  • the number of assets that are likely to come to the petitioner’s hands and
  • when the application is for probate, the petitioner is the executor named in the will
  1. Validity of will and its verification: Section 280 of the Act states that the petition for probate shall be verified and signed by the petitioner and at least one witness. However, any person who is well aware of the falseness of the content of the will and still verifies it to be right shall be deemed to have committed an offence under Section 193 of the Indian Penal Code.
  1. Granting the Probate by the court: after the application of the petition of probate, the court verifies the details and issues a notice to the nearest family members of the deceased testator to claim the probate and file objections, if any. After the consent is given to such probate, then the probate is granted and completed under the seal of the relevant court. In Boppanda N. Kushalappa v. Baleyada K. Cheramanna and others, the court clarified that Senior Civil judges have no probate jurisdiction, only district judges can probate wills.

Challenges And Disputes:

During the process of validation of probate of will by the competent court, disputes may arise among the potential beneficiaries of the will such as the validity of the will or claims made by any potential heirs etc. The challenges that exist with the validation of probate will mainly relate to the bigger question of who is to be given what amount of share. This is the major bone of contention amongst the beneficiaries.

There might be situations where there is no probate of will or in the worst-case scenario no will at all. Here major issue lies in who gets what share in the deceased’s property. 

Need to get in touch with our experts? It’s easy!
Contact us today!