By Shantam Sharma and Ritvik Kashyap
Introduction
The probate process in India is a critical legal mechanism that validates a deceased person’s Will, ensuring its authenticity and enforceability. While often overlooked, this process is pivotal in safeguarding the deceased’s intentions and providing clarity to beneficiaries. Governed under the Indian Succession Act, 1925, probate serves as the official seal of judicial approval for a Will, allowing the executor to administer the estate as per the deceased’s wishes.
Understanding the need for probate is particularly important in scenarios involving disputes, contested Wills, or significant assets, where legal validation becomes indispensable. This article delves into what is probate, to whom probate cannot be granted, is it necessary to obtain a probate of a Will, procedure for obtaining a probate.
What is Probate ?
According to section 2(f) of Indian Succession Act, 1925[1], a 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.”
Probate is a legal procedure through which the court grants the executor of the Will, the authority to manage and distribute the estate of the testator. This judicial process verifies the validity and genuineness of the Will, ensuring its enforceability. During probate, the court identifies the executor, confirms the beneficiaries, and determines the estate’s value. It also provides the executor with official certification, empowering them to administer the estate as per the Will’s instructions.
To whom Probate cannot be granted
As per Section 223 of the Indian Succession Act, 1925[2], probate cannot be issued to individuals who are:
- Minor or
- Of unsound mind
Additionally, it cannot be granted to:
- Associations of individuals, except in cases where the association is a company that complies with the conditions specified by rules notified by the State Government in the Official Gazette for this purpose.
Is it mandatory to obtain a Probate of a Will ?
Under Section 213 of the Indian Succession Act, 1925[3] read with Section 57[4] of the Indian Succession Act, 1925, obtaining probate is mandatory in the following situations:
(a) For Wills executed by Hindus within the jurisdiction of the High Courts of Bombay, Madras, or Calcutta.
(b) For Wills executed by Hindus outside these jurisdictions if the Will pertains to immovable property located within these three regions.
In all other cases, obtaining probate is not mandatory.
Court of Competent Jurisdiction
Probate must be obtained from a court that holds the jurisdiction. According to Section 264 of the Indian Succession Act, 1925[5]:
- District Courts – have the authority to grant or revoke probate, exercising similar powers as in civil suits.
- High Courts of the concerned states – Also possess jurisdiction over probate matters.
However, except for the Calcutta High Court , Madras High Court, and Bombay High Court, other High Courts may only entertain probate applications if they have been authorized to do so through a state government notification published in the official gazette, as per Section 300(2) of the Indian Succession Act, 1925[6].
Procedure for obtaining a Probate
A probate petition must be filed within three years from the date of the testator’s death[7]. The process for obtaining probate involves the following steps:
- Filing the Application by the Executor Named in the Will – The executor named in the Will must submit an application to the District Judge through a probate petition. This petition can be filed seven days after the testator’s death and must comply with the requirements of the Code of Civil Procedure, 1908. Section 276 of the Indian Succession Act, 1925[8] outlines the necessary details to be included in the petition, such as:
- The date of the testator’s death,
- A copy of the testator’s last will,
- Details of the assets to be transferred
- Verification of the Will’s Authenticity – Under Section 280 of the Indian Succession Act, 1925[9], the petitioner and the witnesses to the Will must verify its contents. Section 281 of the Indian Succession Act, 1925[10] further requires that one of the witnesses should declare that they witnessed the testator signing the Will. In addition to these declarations, the petitioner must submit supporting documents, such as the testator’s death certificate, a surviving family member certificate, and proof of the executor’s relationship with the deceased. These documents are crucial to establish the authenticity of the Will.
- Issuance of Probate – Once the probate petition is submitted, the court verifies the details provided and issues notices to the beneficiaries, inviting claims for the probate and objections from the general public. If no objections are raised and the relatives consent to the probate, the court grants and seals the probate, completing the process.
Conclusion
The probate process in India serves as a cornerstone for ensuring the proper administration and distribution of a deceased individual’s estate in accordance with their Will. Governed by the Indian Succession Act, 1925, probate acts as a judicial endorsement of the Will’s validity, offering legal certainty to beneficiaries and executors alike. This process not only safeguards the testator’s intentions but also helps mitigate potential disputes among heirs or stakeholders, particularly in cases involving significant assets or contested Wills. Ultimately, probate reinforces the principles of fairness and clarity in estate management, providing a transparent and legally binding framework to uphold the wishes of the deceased. By adhering to the prescribed legal steps, individuals can ensure a seamless transition of the testator’s estate to its rightful beneficiaries.
[2]Persons to whom probate cannot be granted, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879§ionId=33732§ionno=223&orderno=223&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[3]Right as executor or legatee when established, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879§ionId=33722§ionno=213&orderno=213&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[4]Application of certain provisions of Part to a class of wills made by Hindus, etc, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879§ionId=33566§ionno=57&orderno=57&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[5]Jurisdiction of District Judge in granting and revoking probates, etc, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879§ionId=33774§ionno=264&orderno=265&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[6]Concurrent jurisdiction of High Court, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879§ionId=33809§ionno=300&orderno=301&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[7]Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors, (2008) 8 SCC 463
[8]Petition for probate, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879§ionId=33786§ionno=276&orderno=277&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[9]Petition for probate, etc., to be signed and verified, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879&orderno=281&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[10] Verification of petition for probate, by one witness to will, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879&orderno=282&orgactid=AC_CEN_3_20_00058_192539_1523349789879