While living in the present, it is important to prepare for the future. In an attempt to prepare for future uncertainties, an individual prepares a ‘Will’ directing appropriate distribution of one’s estate after their demise. A Will is a legal document that carries out the intentions of an individual after his/her demise. However, if and after such a demise occurs, a Will does not get enforced automatically. In order to distribute the estate of the deceased as per his/her wishes, the Will has to be authenticated from the Courts of law. Such authentication is called a ‘Probate’. This article decodes this process which is known as obtaining a Probate of the Will to remedy any practical hinderances that one may encounter in enforcing a Will belonging to their loved ones. Before proceeding, it is essential to note that the provisions discussed in this article apply to the Will belonging to a Hindu individual and the provisions applying to individuals of the Parsi or Mohammedan faith may differ significantly.
What is a Probate?
A Probate is a certified copy of a Will that bears the seal of a competent Court.[1] It grants administrative powers over the estate of the deceased Testator/Testatrix i.e., the person who made the Will. A Probate is only granted to an “Executor” of the Will. An Executor is an individual who has been appointed by the Testator/Testatrix to oversee that the intentions recorded in the Will are carried out systematically. In case a Will does not name an executor, a Probate cannot be granted. In such cases, the legal heirs will need to obtain letters of Administration in respect of the estates of the deceased.
Circumstances that mandate a Probate
A Probate can only be granted in favor of the Executor appointed by a Will[2]. It is of the utmost importance in situations involving multiple assets in different locations or states. It is mandatory to obtain probate of a Will executed in the metropolitan cities of Mumbai, Chennai and the State of West Bengal.[3] Similarly, if a Will refers to immovable property in the aforementioned geographical limits, then a Probate will be mandatory to give effect to the Will. As a Probate is the legal authentication of a Will, even in circumstances where it is non-mandatory, it may be prudent.
Process to obtain a Probate
- The first step to obtain a Probate is the filing of a petition with a copy of the Will attached in a competent court.
- This petition can be filed in the district court or in the high court of competent jurisdiction. In the city of Mumbai, Probate Petitions are filed in the Testamentary section of the Hon’ble Bombay High Court. Once it is accepted, a notice will be issued to all legal heirs. For the issuance of a notice, the Executor has to mention the address and the contact details of all legal heirs of the deceased.
- The proof of death of the Testator/Testatrix is demanded by the Courts. After all due submissions, the documents are examined by the Courts and objections (if any) are raised. Parallely, a ‘citation’ of the petition is displayed for all in the Court premises and a notice is sent to all the next of kin. If no objections are received from the legal heirs or interested parties, all due procedures are completed, and a Probate is granted.
- All costs that are incurred in this procedure by the Executor are to be deducted from the estate of the Testator/Testatrix. It is pertinent to note that an objection from any of the legal heirs converts the Probate petition into a Testamentary Suit.
- Once a Probate is granted it is conclusive proof of validity of the Will. In the case of Vasudev Daulatram Sadrangani v. Sajni Prem Lalvani [4], it was decided by the Bombay High Court that no limitation period applied to Probate petitions. Under the provisions of the Limitation Act, 1963, there is no mention of probates, succession certificates or letters of administration. Thus, these documents cannot be deemed as time-barred.
Revocation of a Probate
A Probate is a proceeding in rem. When its application is passed, it binds all the parties according to the details of the Will to be executed. The power to file a suit for revocation of a Probate is only available to the parties who had no clue about the existence of the Probate petition and were not informed about it. If they were not supplied with the citations of the petition, then they are entitled to file for a suit of revocation.
Thus, a Probate extends further evidentiary value to the Will of a deceased. It affords the power of administration of the estates of a deceased. It is mandatory to obtain a Probate in certain jurisdictions and it may be demanded in order to transfer title in respect of the assets involved in the estate. However, the nitty gritties of a Probate span a wide spectrum and unless the Probate petition is drafted carefully, it may cause unnecessary delay. Thus, a prudent Executor or legal heir should be aware of at least the above-mentioned basics of a Probate. Further legal assistance may be obtained as per the facts and circumstances of each case before filing such a petition.
[1] Indian Succession Act, 1925, § 2 (f), No. 39, Acts of Parliament (1925).
[2] Indian Succession Act, 1925, § 222, No. 39, Acts of Parliament (1925).
[3] Indian Succession Act, 1925, § 57, No. 39, Acts of Parliament (1925).
[4] Vasudev Daulatram Sadrangani v. Sajni Prem Lalvani, AIR 1983 Bom 268.