Advocate Selvakumar | property advocates in Bangalore | advocates in Bangalore
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
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.
Where
Probate is required?
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 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 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.
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 proved.
(c) Or
has died after having proved the Will but before carrying out the directions of
the testator.
The court may admit a universal or
residuary legatee to prove 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. 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
Probate
Not Required
Wills made by:
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
Wills in respect of immovable properties situated outside the above limits.
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