In this Article:
- Testator/ Testatrix: The person who has made the Will.
- Executor: The person so named to execute the Will, is called its Executor.
Many of us know that Will is a legal declaration by an individual of his/her intention concerning their property which they desire to be carried into effect after their death.
What is a Will?
In simple words, Will is a legal instrument that lays down how the assets of the Testator shall devolve among the legal heirs after his/her demise and contains the name of the person (Executor) who is generally a trusted friend, lawyer, or confidante who acts as representative & ensures that the last wishes of the testator are fulfilled.
Often, the Testators keep the Will a secret from the family members /beneficiaries so that the testator does not have to experience their animosity during his lifetime. Hence, at the time of execution of the Will, the legal heirs question the genuineness of the Will if there is no unity among them which further leads to disputes among the family members.
Further, registration of a Will does not always prove to be concrete evidence regarding the validity of the Will as the testator can revoke the Will during his lifetime & make a new or modify the existing Will which the testator may or may not Register. Thus, the following points are considered for a Will to be valid:
- A Will is made by a person who is not a minor,
- Who is of a sound mind,
- Has the voluntary intention to dispose of his/her property & is not coerced to do so,
- Lists down the property/assets that are to be bestowed,
- Names of beneficiaries, name of the executor, &
- Must be duly signed by the testator & two witnesses.
Thus, making a Will ensures that the last wishes of the Testator are respected once they are gone but to honour the same it becomes necessary to have a Probate to prove the existence & authenticity of the Will.
What is Probate of a Will and why is it important?
According to The Indian Succession Act, 1925 “probate” means the copy of a Will is certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. In other words, Probate is a grant or certificate given by the court of competent jurisdiction that the Will is genuine, and the last Will of the Testator. There lies no suspicion surrounding the Will with respect to discrepancy, fraud, or coercion among others. Probate acts as conclusive evidence that the Will was duly executed by the Testator & attested by the witnesses & proves the validity of the Will.
Is it mandatory to obtain a Probate? Why is it required?
In India, the probate of a Will is required only in certain cases. The need for probate of Will arises when the Will is made by a person who is domiciled in a jurisdiction that requires probate, or if the Will relates to property situated in a jurisdiction that requires probate. The probate of Will is not required if the property is movable property or if the Will is not contested.
Under Indian Succession Act 1925, it is necessary to obtain Probate in the following cases:
- In the case of Will & Codicils made by Hindus, Buddhists, Sikhs, or Jains made on or after 1st September 1870, residing within the local limits of the ordinary civil jurisdiction of the High Courts at Calcutta, Madras, and Bombay, and
- where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.
It is not mandatory to obtain probate of the Will, however, it is advisable to get one if there are suspicious circumstances questioning the validity of the Will.
To whom probate can be granted?
Probate can only be issued to an executor who has been designated in the Will. Such an appointment can be expressed or spelled out by necessary implication.
For eg: A Wills that C to be his executor if B Will not. B is appointed executor by implication.
If a Will does not name an executor, who is eligible to apply for probate?
If the Testator does not mention or fails to mention the executor of the Will, the legal heirs of the Testator can appoint a person as the administrator of a Will. But if the legal heirs are not able to decide on a person, then any one of the legal heirs of the testator can apply to the court for appointing a person as an administrator of the Will.
Which is the competent court to file for the probate of Will?
Section 264 of The Indian Succession Act 1925 grants the High Court the authority to appoint judicial officers at District Courts to issue probates and letters of administration for non-contentious cases within their local jurisdiction as it deems appropriate.
Procedure to apply for Probate
The process of obtaining probate of a Will in India can be divided into the following steps:
Step 1: Filing of Petition
The executor of the Will has to file a petition in the court of the district where the deceased person had a permanent residence at the time of his death. The petition should contain the following details:
- The name and address of the deceased.
- The date of death of the deceased.
- The details of the Will, including the date on which it was executed.
- The names and addresses of the beneficiaries mentioned in the Will.
- The details of the property are mentioned in the Will.
- The details of any other Wills made by the deceased.
- That the petitioner is the Executor named in the Will.
The petition must be accompanied by the original Will or a certified copy of the Will. If the Will is written in any language other than English, then a translation of the Will is also required to be annexed to the petition.
Step 2: Publication of Notice
After filing the petition, the court Will publish a notice in the local newspaper inviting objections, if any, to the probate of the Will. The notice Will also be posted on the court premises. The purpose of the notice is to inform the public about the probate proceedings and to give an opportunity to anyone who has an objection to the Will to come forward.
Step 3: Hearing of Objections
If any objections are received within the stipulated time frame, the court Will conduct a hearing to decide the validity of the Will. The executor of the Will, along with the beneficiaries, Will have to present their case in front of the court. The court Will consider the objections and decide whether to grant the probate of the Will or not.
Step 4: Grant of Probate
If there are no objections or if the objections are dismissed by the court, the court Will issue a probate order, which confirms the authenticity of the Will and appoints the executor to administer the estate as per the Will. The executor can then distribute the assets and properties of the deceased person to the beneficiaries mentioned in the Will. If there are any objections, the court Will hear the objections and decide whether to grant the probate order.
Step 5: Registration of Probate
After the probate is granted, the executor of the Will has to register the probate with the relevant authorities. The registration is necessary to ensure that the transfer of assets and properties is legally valid.
The case of Kavita Kanwar v. Mrs. Pamela Mehta & Ors [Civil Appeal No. 3688 of 2017] revolves around a dispute over the validity of a Will. The appellant, Kavita Kanwar, challenged the decision of the trial court and high court to decline granting probate of the Will, claiming that the Will was genuine and should be given effect. The respondents argued that the Will was forged and should be declared void. The Court observed that there were various factors causing suspicion that had been taken into account by the Trial Court and the High Court. While each factor by itself and standing alone, may not individually operate against the validity of the Will, a cumulative effect of all those factors may determine that the Will did not truly represent the last wish and testament of the testatrix. The Supreme Court of India ultimately upheld the decision of the lower courts, finding that the Will was not genuine and thus should not be probated.
In India, the Probate of Will is required only in certain cases. The need for probate of Will arises when the Will is made by a person who is domiciled in a jurisdiction that requires probate, or if the Will relates to property situated in a jurisdiction that requires probate. The probate of a Will is not required if the property is movable property or if the Will is not contested. Probate cannot be granted until after the expiration of 7 clear days from the day of the Testator’s death. However, the law does not prescribe a period within which a petition for Probate must be made after the Testator’s death. The process of obtaining probate of a Will can be long that can taking at least five to six months to complete and involves filing a petition, publication of the notice, hearing of objections, grant of probate, and registration of probate but it is necessary to ensure that the estate is administered properly.