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Executing a will: The meaning and significance of probate

Probate means certification of the copy of the will under the court’s seal

March 19, 2019 / 01:14 PM IST

Anju Gandhi

In his will, a testator can bequeath any of the properties, movable or immovable, owned by him. However, properties and rights that are non-transferable cannot be bequeathed. In the previous columns, I have discussed about wills and the essential points to be kept in mind while making a will. This column discusses what happens when a person dies after making a will and some of the steps to be taken by his legal heirs/beneficiaries.

Family members, more often than not, take time in sorting the papers related to the various bank accounts, investments and other assets and this task becomes extremely tedious especially when the departed family member has not shared these details with his/her spouse/children during his/her lifetime.

Probate is the first legal step required to be initiated (in case of testamentary succession) and it is not mandatory to obtain it in some parts of the country.



It means certification of the copy of the will under the court’s seal. It also grants administration rights to the testator’s estate. According to Section 222 of the Indian Succession Act, 1925, a probate can be granted only to the executor. A person not named either expressly or by necessary implication cannot be granted probate of the will. Letter of administration is filed in case no executor is appointed under the will or if the deceased person has not made a will.

Before a petition for the grant of probate or letter of administration is filed, the person must show that he is the executor or will vests the property in him. An invalid indisposition under the will cannot be made valid by the grant of probate. So a property bequeathed by the testator that he was not entitled to bequeath will not be valid, even if the probate is granted.

The question that the court considers is whether the will is genuine. It is not open to the court to decide whether or not the property with which the testator has mentioned in the will belonged to him. The concerned court only decides whether the document by way of will produced before the court is the last will and testament of the deceased person. It also considers whether the document was executed and attested in accordance with the law and that the testator had a sound mind while making the will. The Supreme Court has observed in one of the cases that the question of whether a particular item is good or bad is not within the purview of the enquiry by the probate court.

The executor or the beneficiary can apply to the court concerned for the grant of probate. A probate can be granted when the will has been proved in accordance with legal provisions. However, if the court is suspicious of certain elements, it insists on strict proof. The probate, in that case, may not be granted.

A petition for grant of probate can be filed by the executor or the beneficiary. After it is filed, the court gives public notice in any leading newspaper to invite public objection, if any. Upon completion of the notice period, the court records the evidence on behalf of the petitioner in support of the execution of the will. After the evidence is recorded and the court is satisfied about the due execution of the will, probate is granted.

Stipulated court fee is required to be paid after passing of the court order. Thereafter, the petitioner receives the probate order from the court and can deal with the assets of the deceased in terms of the will.

There may be a situation where probate petition is challenged by others. If so, the court concerned tries the case before making a judgment.

The executor/beneficiary should be aware of the following things:
a. A probate can be granted by the district judge or High Court where the High Court has original jurisdiction.
b. The original will is required to be filed along with the petition for probate.
c. Execution of the original will should be proved by producing witnesses to the will. It is the best evidence.
d. Once the court is convinced about the due execution of the will, it grants probate.
e. The grant of probate in itself does not create any title of the property.
f. Similarly, the grant of probate does not entitle the petitioner to the possession of the property whose title is under dispute.
g. Probate cannot be granted to any person who is a minor or is of unsound mind or any associations of individuals, unless it is a company as provided under Section 223 of the Indian Succession Act, 1925.

h. Where any codicil is discovered after the grant of probate, separate probate of that codicil may be granted by the court.

The author is Partner at the law firm SNG & Partners.
Moneycontrol Contributor
first published: Mar 19, 2019 01:14 pm

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