Probate of Will in India

Probate is understood as the legal process a will undergoes to prove its validity before anything can be apportioned to the legatees or recipients.

Concept of a Will:

A Will is a testament and a legal declaration by which a person, viz the  testator, names one or more persons as the executor to manage his/her estate and provide for the transfer of his/her property after his death. A Will can be made by anyone above 21 years of age in India and is a very effective tool of guidance in  estate  planning.

The  Will can, however, be made only for self-acquired properties and not for ancestral properties. A Will always takes effect after the death of the Testator and can be revoked only during his/her lifetime. A word of caution though is that the  testator cannot bequeath his estate to a charity leaving his family in a state of poverty and thus depriving the family, without giving very good grounds for such disinheritance, that would stand the scrutiny of a court of law.

Eligibility to make a Will

Under the Indian Succession Act, 1925, any adult of a sound mind can write a Will to plan his  estate after his death. Therefore, any person who has only a physical inability viz loss of sight or hearing cannot be prevented from making a Will, as long as he/she is mentally fully aware of his/her action and is doing it voluntarily without coercion, undue influence etc. The criteria to be followed is as under:

1. The  testator should be of a sound and disposing mind
2. He should be free from any undue influence or coercion
3. The making of the Will should be a voluntary act
4. The  testator should be fully aware of the contents of the Will

Nonetheless, this act excludes Muslims as their laws are mostly governed under Muslim Personal Law.

Essential Elements of a Will

The following checklist in a  Will helps ensure its enforceability:

1. The Will should have the details of the  testator, e.g. name, address.
2. The need for making the Will should be spelt out along with the fact that the  testator is of a sound mind and is making the Will voluntarily and there is no coercion.
3. Use of unambiguous language in bequeathing of the estate.
4. The name of the executor ( the person named by the  testator to execute the  testator’s wishes) should be mentioned.
5. The schedule of properties should be appended and
6. The Will should be signed by the  testator and attested by two witnesses.

Enforcement of A Will After Registration

Though a  Will is not required to be registered and can be drawn on plain paper also, it is desirable that it be registered. The  registration can be done with the Registrar of Assurances where the  testator resides. A  Will can be registered during the life of the  testator or by the executor or legatee after the death of the  testator. Later amendments should also be registered. Registration of a  Will ensures that it cannot be tampered with, the authenticity of the Will is established, and allegations of making the Will under duress can also be deflected.

A Will is enforced by an   executor who is the safe keeper of the rights of the beneficiaries under the Will. The provision of the Indian Succession Act makes it mandatory for enforcement of rights under the Will only by way of a  probate. However, this bar does not apply to Hindus in India except, if the immovable property is in Kolkata, Mumbai and Chennai. Probate means certifying of the Will by a court of competent jurisdiction. The  executor can apply for a grant of  probate in the court of competent jurisdiction by way of a proper application.

Probate of the Will

Probate is understood as the legal process a will undergoes to prove its validity before anything can be apportioned to the legatees or recipients. Irrespective of whether a Will is registered or not, the executor  has to initiate the probate process in a High Court or a District Court having appropriate jurisdiction. In the event there is no executor, the  court can appoint an Administrator of the Estate. For probate, you have to pay a court fee, based on the value of the assets, which are the subject matter of the petition. The court fee varies from place to place and in Maharashtra, it is 2% to 7.5%, depending on the value as mentioned under the Schedule, subject to a maximum of Rs 75,000.   

The steps involved in the probate process must be carried out as under.

1. A petition needs to be filed in an appropriate  court of  jurisdiction.
2. The  petition should describe the date, time and place of death of the testator, and annex the Will as an  exhibit to the petition.
3. The  petition should be duly verified at the time of filing.
4. A stamp paper of requisite  court fee should be annexed along with the  petition, for the  court to grant the probate on that  stamp paper.
5. After the receipt of  petition,  court calls for objections from the legal heirs or kin. A Notice is published to this effect in 2 leading newspapers, both English and regional with a specified period to report the objections.
6. Later, on being satisfied that the Will has duly been executed, the concerned court will grant  probate of the Will. The  court generally checks whether the Will has duly executed as mandated under the  law.

Reasons to probate a Will

A Probate becomes mandatory under the Indian Succession Act, 1925, when a Will is made in the jurisdiction of the regime of the Lieutenant-Governor of Bengal or within the jurisdiction of the Ordinary Original Civil Jurisdiction of the High Courts of Judicature at Madras and Bombay. The provisions of the said Act refer to the places like how they were renowned at the time of enactment of the Indian Succession Act, 1925, even if the Will does not deal with any immovable property. Also, the system of mandatory probate is germane, in the case where the Will is made by a Hindu, Jain, Sikh or Buddhist. However, getting probate is advisable, if there could be a probability of the cogency of the Will being contested in future on any ground.

For the rest of India, if there is property within the territory of formerly unpartitioned Bengal, or in territories falling within the jurisdiction of High Courts of Madras or Bombay, probate is mandatory for transfer of the immovable property.

Conclusion:

A registered Will need not be necessarily probated, as registration means that the testator of the  Will and the witnesses have appeared before the sub-registrar of assurances and that their identity has been verified. However, the registered Will can also be probated, if the  genuity of the Will is in question. Nevertheless, Will does not fall within the instruments that need to be mandatorily registered under the Registration Act 1908 and even an unregistered Will is also valid. The Will has to be probated, as mentioned above and mandatorily for places like Delhi where it has been made mandatory to probate unregistered Wills to execute it.

A  probate is used to protect estates so that the correct beneficiaries inherit the testator’s assets. It provides the chance to close out all creditors to the estate within 90 days. It is even used as a tool to challenge a creditor’s claim in a court of law, in case the creditor has falsely made a claim.

Therefore,  probate of a Will establishes the legitimacy of a will after the death of the testator and shows the executors and legal heirs to the substance mentioned in the will. However, if there is consent among all heirs then there is no need to go through the  probate process.