Probate under Indian Succession Act, 1925

The Indian Succession Act, 1925, is a comprehensive legislation governing matters related to wills, intestate succession, and testamentary succession. One of its most significant provisions is the concept of Probate, which is a legal process that validates and authenticates the last will and testament of a deceased person. The term “Probate” under this Act is crucial for establishing the authenticity of a will and granting the executor the necessary legal authority to administer the estate of the testator.

Definition of Probate

According to Section 2(f) of the Indian Succession Act, 1925, “Probate” means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. Simply put, Probate is a legal confirmation of the validity of a will, granted by a court to the executor, thereby giving him or her the authority to administer the deceased’s estate as per the will’s terms.

Legal Framework Governing Probate

Probate is an essential part of testamentary succession under the Indian Succession Act, 1925, and is primarily governed by the following sections:

• Section 2(f): Defines Probate.
• Section 213: States that an executor or legatee cannot establish any right under a will in a court of law unless Probate or Letters of Administration has been granted.
• Section 57: Lists categories of wills for which Probate is mandatory.
• Section 223: Specifies persons who are ineligible for Probate.
• Section 234: Governs the issuance of Letters of Administration when no executor is named.

When is Probate Required?

Under Section 213(1) of the Act, obtaining Probate is mandatory for executors or beneficiaries before they can establish any rights in a court of law. However, Section 213(2) read with Section 57 carves out certain exceptions:

Probate is Mandatory for

1. Wills made by Hindus, Buddhists, Sikhs, or Jainas:
   • If executed after September 1, 1870, in Bengal, Bombay, or Madras.
   • If dealing with immovable property located within these territories.
2. Wills made by Parsis (after 1962) in specified jurisdictions.

Probate is NOT Required for

1. Wills executed by Muhammadans (as per Section 213(2)).
2. Wills not dealing with immovable property in Bengal, Bombay, or Madras.
3. Wills executed outside these jurisdictions that do not deal with immovable property inside them.

Thus, while obtaining Probate is mandatory in some cases, it is optional in others, depending on the location of the property and the testator’s religious background.

What is the Process of Obtaining Probate?

The process of obtaining Probate involves several legal steps to ensure the will’s authenticity and safeguard the interests of heirs and creditors.

Step 1: Filing a Probate Petition

The executor (or any interested party) must file a Probate petition before a competent court. The petition must include:

• Name, address, and details of the deceased.
• Date and place of death (death certificate required).
• A copy of the will.
• Details of legal heirs and assets.
• Declaration that the will is the last testament of the deceased.
• Proof of jurisdiction of the court.

Step 2: Issuance of Notice

Once the petition is filed, the court issues a public notice to:

• Legal heirs and beneficiaries.
• Interested parties (creditors, claimants, etc.).
• General public (published in newspapers). This notice invites objections (if any) to the grant of Probate.

Step 3: Verification of the Will

Under Section 61, the court examines:

• Whether the will was executed voluntarily.
• Whether it meets all legal requirements.
• If the testator was of sound mind at the time of execution.
• Absence of coercion, fraud, or undue influence.

Step 4: Hearing and Grant of Probate

• If no objections are received, the court grants Probate.
• If contested, the matter proceeds to trial, where witnesses and evidence are examined.
• Upon satisfaction, the court issues a Probate certificate, authorising the executor to manage the deceased’s estate.

Who Cannot Be Granted Probate? (Section 223)

Probate cannot be granted to:

• Minors.
• Persons of unsound mind.
• Associations of individuals, unless it is a registered company that meets government conditions.

Key Judicial Precedents on Probate

Several landmark judgements have shaped the legal interpretation of Probate in India:

Clarence Pais & Ors vs Union Of India (Supreme Court)

This case reinforced the mandatory nature of Probate for wills executed in Bengal, Bombay, and Madras under Section 213.

Kanta Yadav vs Om Prakash Yadav (Supreme Court)

Emphasised the importance of verifying the authenticity of a will before granting Probate.

Banarsi Dass vs Teeku Dutta (Supreme Court)

Clarified that a Succession Certificate does not grant administrative rights; only Probate or Letters of Administration do.

These cases demonstrate that Probate is a crucial legal instrument in estate administration and testamentary succession.

Probate vs. Other Estate Administration Documents

Conclusion

Probate plays a vital role in the Indian legal system, ensuring that the last will of a deceased individual is executed in a lawful and orderly manner. It provides legal validation, safeguards against fraud, and grants the executor necessary authority to manage the estate.

Understanding the jurisdictional and religious exceptions is crucial for determining whether Probate is mandatory or optional. While Probate and Letters of Administration grant full estate administration rights, Succession Certificates only facilitate inheritance of debts and securities.