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 devolvement 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. How ever 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
anytime 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 be executed 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
form, if not disputed and it will be in solemn form if disputed or irregular.
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.
The obtention of probate, and letters ofadministration are mandatory to establish the right as executor or legatee asper those sections. But the application of the sections is restricted. Act
specifically exempts Mohammedans and Indian Christians. Indian Christians means
a native of India Madras , Bombay and Calcutta
The obtention of probate is also applicable to Parsis,
if the Wills are made by parties dying after the
commencement o Indian Succession Act, within the local limits of ordinary
original Civil Jurisdiction of High Courts, of Calcutta ,
Madras , and Bombay
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 of 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.
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.
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 devolvement 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.
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
will fully 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. Probate Not Required
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.
4. Parsis
Dying
after the commencement of Indian Succession Act 1962 and Wills made outside the
local ordinary original civil jurisdiction of High Courts at Calcutta ,
Madras , Bombay
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