Moneycontrol
Jan 15, 2018 08:52 AM IST | Source: Moneycontrol.com

What is Probate of a Will and why is it important?

Amit Kolekar, Associate Partner, Rajani Associates, spells out the nuances of a Probate of a Will.


Amit Kolekar

Will is the legal declaration of a person's intention, which he/ she wishes to be performed after his/her death and once the Will is made by the testator/ testatrix, it can only be revoked during his/her lifetime.

'Probate' means the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator. A probate can be granted only to the executor appointed under the Will. Further, a probate is essential if the Will is for immovable assets in multiple states.

Caveat a Latin term means 'let a person beware'. In law, it can be explained as a notice or a precaution exercise (generally in probate cases) that a certain matter is not heard, judgement is not passed, order is not issued without hearing the person who has filed the caveat. It can be made in an application already made or which is supposed to be made in future.

The importance of a 'Probate Caveat'

A probate caveat is a document that is filed in court to prevent the proposed executors or administrators of a deceased person's estate from getting permission to administer the estate assets. A probate caveat is used to challenge a Will itself. For example, where someone believes that the Will was forged or was not written and approved by the deceased person.

If someone files a Probate Caveat in the wrong circumstances, the court may order that person to pay the costs incurred by the other party in dealing with the caveat.

A probate caveat must be filed shortly after a deceased person's death and before probate are granted by the court. If someone has concerns about someone's Will, it is very important that person should seek legal advice as soon as possible after the testator/ testatrix dies, so as to make sure that person starts the proceedings within time and on the correct basis.

Necessity of a Probate in certain cases: As per the provisions of the Indian Succession Act, 1925 ("Succession Act") the provisions of testamentary succession are applicable to the Will if:

(i) Made by Hindu, Buddhist, Sikh or Jain on or after the first day of September, 1870, within the territories which at the date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay or

(ii) Made the Will outside those territories and limits, so far as relates to immovable property situate within those territories or limits.

Further, no right as an 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. However, this provision applies only to the cases, which are referred above. Therefore, a Probate of Will is compulsorily required, only if the Will is made in any one of the aforesaid two cases, otherwise, it is not compulsorily to Probate the Will.

Even otherwise, it would be advisable to seek Probate of Will in case of:

(i) When there are problems with an existing Will

(ii) When the beneficiaries have predeceased the testator and such other cases.

Probate of a Will

It is pertinent to understand the process of obtaining the Probate of a Will. A Probate is granted by the High Court with the court seal and a copy of the Will attached. For seeking a Probate, the executor of the Will, as a Petitioner is required to file the petition (after making payment of applicable court fees depending upon the value of the assets) before the competent court (a pecuniary jurisdiction may require a higher court to issue a probate for high-value immovable assets) through an advocate. Thereafter, the court usually asks the Petitioner to establish the proof of death of the testator, as well as proof that the Will has been validly executed by the testator, and that it is the last Will and testament of the deceased. After receiving the petition for a Probate, the court issues a notice to the next of kin of the deceased to file objections, if any, to the granting of the probate and it also directs the publication of a citation on board to notify the general public. If there is no objection, on the other hand, if the next of kin of the deceased files their respective consent to the grant of Probate, then court grants the Probate, however, if the next of kin of the deceased files their respective objections to the grant of Probate, then the Probate Petition becomes the testamentary suit, to enable parties to lead evidence in the matter.

Challenges to Wills and probate claims:

It can be difficult task to challenge a Will. In most of the cases, courts stick stringently to Wills, since the testator is no longer there to defend himself. However, if you have an interest in the Will, you can challenge it, and if you are successful in convincing the court, then the Will can be voided in its entirety or in part. It is advisable to seek an advice from a practicing lawyer before challenging the Will, since the law surrounding challenges to a Will is complicated, plus, the facts of each case are unique. The Will can be challenged on any of the following grounds:

Lack of due execution: A valid Will has to be in writing and signed by the testator in the presence of two witnesses, who must also attest the Will. If the process is not followed to the hilt, the Will can be challenged in the court of law.

Lack of testamentary intention: Here, the person has to prove that the testator had no intention to make a Will, however, this plea is rarely used, as it is difficult to prove.

Lack of testamentary capacity: The law requires that people above 18 years can make a Will. Adults are presumed to have a testamentary capacity, and therefore, the Will can be challenged on the basis of senility, dementia, insanity, or that the testator was under the influence of a substance, or in some other way lacked the mental capacity to make a Will. Basically, to challenge a Will based on mental capacity, the challenger of Will must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of its creation.

Lack of knowledge or approval: Challenger of Will can take the ground that the testator did not, in fact, know what was in the Will when he signed it.

Undue influence: Challenger of Will can challenge a Will by showing that the Will was procured by fraud, forgery, or undue influence, i.e. lack of own free will or without adequate attention as to the consequences of bequests so made under the Will.

Fraud or forgery: The burden of proof would be on the challenger of the Will to establish that the Will was forged (not signed by the testator) or was made as a result of fraudulent act.

Claims by family: A family member can challenge a Will on the grounds that they were not provided for adequately in the Will.

Revocation of earlier Will: A Will, although registered can be challenged in the court of law. The mere fact that a Will has been registered (not mandatory under the law to register the Will) will not, by itself, be sufficient to dispel all suspicions regarding it. A registered Will may not be the last testament. A new Will made, even if unregistered, if valid, will trump the registered Will. If there are any suspicious facts, the court will scrutinize the Will even if it is registered.

Creating a Testamentary Trust

To create a testamentary trust in a Will, the testator must designate a trustee and specify the beneficiaries. As mentioned above, a testamentary trust comes into effect not until the testator dies. Thus, the testamentary trust must be contained in the testator last (final) Will, so the trust can be created upon the testator death. A testamentary trust is not automatically created upon the demise of the testator. While other types of trusts may avoid probate, a testamentary trust must go through the probate process. The testamentary trust will come into effect upon the completion of this process. A trustee, chosen by the testator, will manage the trust property or funds in the trust until the trust is dissolved and the same is distributed to the beneficiaries.

Grounds under which a Will after a Probate can be contested

The Succession Act provides for certain grounds on which a Probate of a Will may be revoked, however such revocation can only be effected if the person challenging the Probate is able to convince the competent court that it is necessary to revoke the Probate 'for just cause'. Further for challenge of a probate, the law of limitation must also be abided by, as probate operates as a 'right in rem' granted by the competent court, operates from the date of grant of the probate, therefore a challenge which is hopelessly barred by limitation cannot be entertained by any court of law. Further, an order of revocation of the Probate would operate prospectively and such revocation does not obliterate bona fide transactions entered into by the executor during the pendency of the Probate. The challenger can challenge the Probate of Will on the following grounds:

1. The proceedings to obtain the grant of Probate were defective in substance; or
2. The grant of Probate was obtained fraudulently by making a false suggestion, or suggestion, or by concealing from the court something material to the case; or
3. The grant of Probate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
4. The grant of Probate has become useless and inoperative through circumstances; or

5. The person to whom the grant of Probate was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.

Conclusion

Seeking grant of Probate of Will is a time consuming task to be complied by the executor of the Will of the testator, for which, the testator also has to spend time and money towards payment of court fees depending upon value of assets bequeathed under the Will. However, as stated above, it is compulsory to seek grant of Probate of Will only in certain cases, whereas, it is not compulsory to seek grant of Probate of Will in other cases.

The writer is Associate Partner, Rajani Associates
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