WILL AND PROBATE

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People have fair knowledge of will, which is defined in Section 2(h) of 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 a administrator. The persons who are entitled to the benefits under the will are called Legatees. “Bequest under Will is not transfer of Property”

Revocation of WILL

Will is always revocable; it can be revoked following manner: Revocation by another Will or Codicil. Revocation by declaration in writing. Revocation by cancellation. Revocation by destruction; Will can be revoked ‘by burning, tearing or otherwise destroying.

Under Mohammedan law: no writing is required to make a Will Valid and no particular form; even of verbal declaration, is necessary as long as intention of the testator is sufficiently ascertained, and though if it is writing it does not require to be signed nor even signature and attestation, But under Mohammedan law a Mohammedan cannot dispose of more than one third of share of his property over which he has power of disposition by will. Bequest in excess of the legally One Third shares cannot take effect, unless the heirs do not consent. The remaining two third portions shall go to his heirs in share prescribed by law.

Probate

Probate is defined in Indian Succession Act, as “a copy of Will certified under the sealof a court of competent Jurisdiction with grant of administration to the estateof testator”. This is the official proof of the Will. Application for probate has to be filed under section222, and 276 of Indian Succession Act in the 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. However 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.

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Section 233 of Indian Succession Act 1925 states that 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 to be probated, the original is to be deposited in the registry of the court. The court will issue a copy of the Will with a certificate of having it made out under the seal of the court. The 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 any time 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 a document that amends rather than replaces a previous executed will, and 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.

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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 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.

Where Probate is required?

There is much confusion whether all wills execute by Hindus, Muslims, Christians, Buddhists, Sikhs, Jains require probate. Section 57 and read with section 213 of Indian Succession Act clears this confusion.

Obtaining of probate and letters of administration are mandatory to establish the right as executor or legatee as per those sections. But the application of the sections is restricted. Act specifically exempts Mohammedans and Indian Christians. Indian Christians means a native of India, who is or in good faith claims to be of unmixed Asiatic descent and who professes any form of Christian religion. In case of Hindus, Buddhists, Jains, Sikhs the provision is applicable only to the Wills made after 01.09.1870 within the territories which on the said date were subject to the Lieutenant Governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Madras or Bombay and even to the Wills made outside those territories, if the immovable properties referred in Will falls within the territories mentioned above. Provision is not applicable to Wills made by Hindus, Buddhists, Sikhs, Jains outside these territories or if the immovable properties referred in will are situated outside these territories. Probate of will is must in Madars, Bombay and Calcutta. In moffusal areas it is optional.

Obtaining of probate is also applicable to Parsis, if a person executes Will and he dies after the commencement of the Indian Succession Act, within the local limits of ordinary original civil Jurisdiction of High Courts, of Calcutta, Madras, and Bombay or if the immovable properties referred in Will is situated in those territories.

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 In the Will if it narrates that ‘A’ shall be the executor, and ‘B’ do not have any interest, then in such circumstance ‘A’ shall be the executor and ‘B’ does not have any interest. If several executors are appointed, the court may grant probate to all of the 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 anyone of the dies, the full representation of testator rests on the surviving executors. If the executor appointed renounces or does not accept to be executor, within the time limited for acceptance, the Will may be probated and letters of administration with a copy of the will annexed may be granted to person, who would be entitled to administration.

Death of Executor

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 probated.

c)Or has died after having probated the Will but before carrying out the directions of the testator.

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The court may admit an universal or residuary legatee to probate the Will and letters of administration may be granted to him.

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.

Revocation of Probate: The grant of probate may be revoked on following grounds. A) The proceedings to obtain the grant were defective in substance. B) The grant was obtained by fraud, by making false suggestions. C) 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.D) The grant has become useless and inoperative through circumstances. E) The person to whom the grant was made has willfully 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.

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