The law on intestate succession is governed by the Indian Succession Act, 1925 for all communities except Muslims.
Any person who owns a property desires that upon his death the property should safely be transferred to his children/spouse or who ever whom he desires. The best way to ensure the division of the property as per one’s wish is to execute a Will. Some questions still cross the mind of the person and the likely beneficiary to the estate which can be broadly classified as under:
Succession is the transmission of property belonging to a person at his death to some other person or persons. Succession and Inheritance can be of two kinds – Testamentary which means inheritance as per the Will of the deceased and Non Testamentary, where the deceased dies without making a Will. The law on intestate succession is governed by the Indian Succession Act, 1925 for all communities except Muslims.
Wording of a Will
Sec.74 of the Indian Succession Act, 1925 lays down that the use of technical words or terms of art is not necessary in a will but the wording should be such as to clearly indicate the intention of the testator. A will must be construed as a whole to give effect to the manifest intention of the testator.
According to Section 2(b) of the Indian Succession Act, 1925 Codicil is an instrument made in relation to a Will and explaining, altering or adding to its disposition. It shall be deemed to form part of a Will. Similarly to the Will, the Codicil must be signed by the Testator and attested by two Witnesses.
Registration of Will
According to Section 18 Indian Registration Act, 1908 the registration of Will is optional. A will need not be registered compulsorily but if so desired it may be registered by the testator during his lifetime. A Will may be deposited with the registering authority under Sec.42 of the Indian Registration Act, 1908. Which says- “Any testator may, either personally or by duly authorized agent, deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document” A Will or Codicil is not required to be stamped at all.
Probate of Will
A probate is a copy of a will certified by a court of competent jurisdiction. It proves that it is the last and final will of the deceased penned on a particular date. A probate is granted with the court seal and has a copy of the will attached to it. Probate can be granted only to the executor appointed by the will. The appointment may be express or implied by necessary implication. It cannot be grated to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company satisfies the conditions prescribed by the rules made by the State Government. Probate is granted to an executor appointed under the will and he may not be able to administer its provisions without a probate. It may also be necessary when the deceased leaves behind securities with various nominees and there is a dispute on their division. The nominee can only hold the assets in trust till these are divided as indicated in the will after a probate has been obtained.
Procedure for obtaining probate
A petition for probate must be filed in court along with the will in question. It should contain the following facts: a) The time of the testator’s death; b) That the writing annexed in his last will and testament; c) That it was duly executed; d) The amount of assets which are likely to come to the petitioner’s hands, and e) The petitioner is the executor named in the will. The application for probate shall be signed and verified by the executor or beneficiary. After receipt of the petition, the court issues notice to the next of kin of the deceased to file their objections, if any, to the grant of probate. A general public notice is also given in a newspaper. The petitioner is thereafter asked to establish the (a) Proof of death of the testator; (b) Proof that the will has been validly executed by the testator (c) Will is the last will and testament of the deceased.
Is Probate Compulsory?
A probate for a will is required to be obtained only under circumstances mentioned in Section 213 of Indian Succession Act, 1925. Section 213 is reproduced for ready reference:-
“Section 213 : Right as executor or legatee when established – (1) No right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. (2) This section shall not apply in the case of wills made by Mahommedans, and shall only apply – (i) in the case of wills made by any Hindu, Buddhist, Sikh, or Jaina where such will are of the classes specified in clause (a) and (b) of s 57 ; and (ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act 1962 where such will are made within the local limits of the ordinary civil jurisdiction of the High Courts of Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immoveable property situate within those limits.”
Thus it is very clear from the above provision that a probate is required only under following circumstances: (i) All wills of Hindus etc. made on and after 1 September 1870, within the provinces of Bengal, Bihar, Orissa and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay. (ii) All such wills made outside the territories mentioned in Clause (i) above relating to immovable properties situate within the said territories must also be proved and probate thereof obtained, before any right as executor or legatee can be established. (iii) Wills other than those in categories (i) and (ii) above made before 1 January 1927, i. e. to say, such wills made outside the territories mentioned in (i) above, relating to movable property situate inside or outside the said territories or immovable property situate outside the said territories are not required to be proved or probated. (iv) Where a will is not executed within the territories mentioned in para (i) or the will does not relate to property situate within the territories mentioned in para (ii), sub-s (1) of s 213 is not attracted. Since no probate is necessary of the will in the instant case, the will is admissible in evidence even though it is not probated in accordance with Section 213 of Indian Succession Act, 1925.
Difference between probate and letters of administration
A probate can be granted only when a person dies after making a Will. The letters of adminstration may be with Will or without Will.
Probate will be applicable when a Will appoints an executor.
The author of this Article is Anupam Srivastava who can be reached at firstname.lastname@example.org