Probate: Perspectives from the Indian Succession Act, 1925

Article explains What is probate under the Indian Succession Act, 1925, Scope of probate, Contents of the petition of probate, Competent court to file for the petition of probate, Court fee payable on a petition for probate and letters of administration, Limitation Period for filing the petition Under the Indian Limitation Act, No 9 of 1908 or the Act of 1963 and Relevant Sections under Indian Succession Act, 1925.

I. What is probate?

A probate has been defined under the Indian Succession Act, 1925 as 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. The person who makes a Will, expresses his wishes to be executed after his death by certain persons who are generally named in the Will. The persons so named to execute the Will, are called its executors.

A probate is a method through which a Will is certified, under the seal of a court. A probate establishes and authenticates the Will finally. A probate is a conclusive proof of the fact that the Will was executed validly and is genuine and the last Will of the deceased.

Why is probate necessary? – Probate is necessary when an estate’s assets are solely in the name of the deceased person. It is necessary to transfer the estate’s property into the name of the beneficiaries.

II. Scope of probate

This section applies to a written will and not an oral will. But if an oral will was made before this Act came into force and an application for probate was pending before the commencement of the operation of the Act, probate would be governed by this Act and a probate can to granted to the oral will.

The Act lays down a rule of procedure only and not a substantive law and therefore would not make the oral will invalid and would not refuse to probate it.[1] It was held that since the section lays down only a rule of procedure, it applies to a pending application when the Act came into force. Hence an application for an order for permission to file probate proceedings in torma pauperis (now as an indigent person) may be granted.[2]

III. Contents of the petition of probate

1. Original Will

The original will must be annexed except in cases mentioned in Section 237, 238 and 239 when the will is lost or mislaid or lost or destroyed or when the will is in the possession of a person residing out of the state in which the application for probate is made. In those cases, only a copy, draft or statement of contents are to be annexed to the petition. When the will is proved abroad and a properly authenticated copy is produced in the petition for letters of administration under s 228, the authenticated copy should be annexed to the petition. The will must be proved and the court must be satisfied that the will has been duly executed, and attested. If the will is not in English or in the language of the court, its official translation must accompany.[3]

2. Exact date of testator’s death

Wherever possible exact date must be mentioned. In case the exact date is unknown, the dates between two specific dates may be given. If the person was missing and later his body was found, it must carry with it the date from when he was missing and such date when the body was found. The executor or administrator has, therefore, to specify the date of death. If that cannot be done and the fact of death is certain, the court may grant probate or letter of administration with the will annexed as being satisfied why a more precise date cannot be given.[4]

3. Affidavit by the witness

The writing annexed is the last will and that it was duly executed on a particular date. Such affidavit as far as possible should be made by one of the attesting witnesses if available. It may happen that owing to a lapse of time or other reasons that a witness cannot speak of the date with certainty. In such a case, he should endeavour to place the date or execution within a definite and limited period.[5]

4. Asset Value to be inherited by way of the Will

The amount and value of assets which are likely to come to the petitioner’s hands and the value thereof for the purposes of probate duty.[6] Only the properties situate in India need to be mentioned.

5. The petitioner is the executor named in the will.

6. Details of any other applications of probate (if any)

When the application is made for probate to have effect throughout the whole of India, whether any application for probate or for letters of administration was made to any other court and if so, with what result.

IV. Which is the competent court to file for the petition of probate?

The executor of the will can file for the probate of the will in the state in which the deceased person was living at the time of death. Thus, the competent court to file probate proceedings is the district court of the city/town where the deceased lived at the time of death.

Where an application is made to the district judge, the executor must ensure that the deceased has had his fixed place of abode or some property which comes within that jurisdiction of the district judge.[7]

V. Court Fees payable

Court fee payable on a petition for probate and letters of administration is according to the scale prescribed in Schedule I, art 11 of the Court Fees Act. When the amount or the value of the property does not exceed rupees one thousand, no fee is payable (see s 19I of Court Fees Act). According to Schedule III of the Court Fees Act, the property must Comprise not only the property which has come to the hands of the petitioner but also the property likely to come to his hands. Any property which the deceased possessed or was entitled to at the time of his death must be shown in annexure A. If the property is subject to a Suit pending at the time the petition was made and it is contended in the suit that the property belongs to the estate of the deceased, it still must be shown in annexure A and must not be put out separately.[8]

If the petitioner has no assets of the deceased in his possession he is not required to pay the Court Fee out of his own pocket. In Chote Lal v State,[9] the deceased had in his current account over a lakh of rupees and the court fee and estate duty came to Rs 52,000. The court directed the bank to deposit out of the account lying in the current account Rs 52,000 with the registrar of court for payment of court fee and estate duty.

VI. Limitation Period

Under the Indian Limitation Act, No 9 of 1908 or the Act of 1963 there is no period prescribed within which a petition for probate should be made after the deceased death.[10]

It may therefore be presented at any time after the death of the testator, even many years after the death.[11] But delay in applying naturally gives rise to some suspicion. If the application is delayed by more than three (3) years after death, the reason for such a delay must accompany the petition.[12] The long delay in making such an application is a circumstance which may be taken into account in determining the genuineness of the will, but it is not a ground for refusing probate.[13]

VII. Relevant Sections

• Section 276 of the Indian Succession Act, 1925

276. Petition for probate.—

(1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating—

(a) the time of the testator’s death,

(b) that the writing annexed is 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) when the application is for probate, that the petitioner is the executor named in the will.

(2) In addition to these particulars, the petition shall further state,—  (a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and (b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate. (3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

• Section 237 of the Indian Succession Act, 1925

237. Probate of copy or draft of lost will.—When a will has been lost or mislaid since the testator’s death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the will has been preserved, probate may .be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced.

• Section 238 of the Indian Succession Act, 1925

238. Probate of contents or lost of destroyed will.—When a will has been lost or destroyed and no copy has been made nor the draft preserved, probate may be granted of its contents if they can be established by evidence.

• Section 239 of the Indian Succession Act, 1925

239. Probate of copy where original exists.—When the will is in the possession of a person residing out of the State in which application for probate is made, who has refused or neglected to deliver it up, but a copy has been transmitted to the executor, and it is necessary for the interests of the estate that probate should be granted without waiting for the arrival of the original, probate may be granted of the copy so transmitted, limited until the will or an authenticated copy of it is produced.

• Section 279 of the Indian Succession Act, 1925

279. Addition to statement in petition, etc., for probate or letters of administration in certain cases.—

(1) Every person applying to any of the Courts mentioned in the proviso to section 273 for probate of a will or letters of administration of an estate intended to have effect throughout 1 [India], shall state in his petition, in addition to the matters respectively required by section 276 and section 278, that to the best of his belief no application has been made to any other Court for a probate of the same will or for letters of administration of the same estate, intended to have such effect as last aforesaid, or, where any such application has been made, the Court to which it was made, the person or persons by whom it was made and the proceedings (if any) had thereon.

(2) The Court to which any such application is made under the proviso to section 273 may, if it thinks fit, reject the same.

• Section 280 of the Indian Succession Act, 1925

280. Petition for probate, etc., to be signed and verified.—The petition for probate or letters of administration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be verified by the petitioner in the following manner, namely:— “I (A.B.), the petitioner in the above petition, declare that what is stated therein is true to the best of my information and belief.”

• Section 281 of the Indian Succession Act, 1925

281. Verification of petition for probate, by one witness to will.—Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following, namely:— “I (C.D.), one of the witnesses to the last will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last will and testament in my presence).”

References:

• S S Subramani ET AL., Paruck The Indian Succession Act (9^th).
• The Indian Succession Act, 1925.

[1] Pitam Lal v Kalla Ram, AIR 1931 All 489

[2] Re C Gouridaswamy, 47 LW 736.

[3] The Indian Succession Act, 1925, No. 39, S. 277.

[4] Williams and Mortimer, Executors, Administrators and Probate, p 21.

[5] Phillip’s Probate Practice, fifth edn, p 27

[6] Kuppayammal.p Ammani Ammal 22 Mad 345; Khubchand v Motibai AlR 1936 Sau 150, 165 IC 202.

[7] Raj Rani v Raijada Mool Raj AIR 1962 Punj 62.

[8] Rodricks v Sunder, AIR 1956 Bom 404.

[9] AIR 1956 All 152.

[10] Manekbai v. Manekji, 7 Bom 213; Re Ishan Chunder Roy, 6 Cal 707; Kashi Chundra v. Gopi Krishna, 19 Cal 48.

[11] Gnanamuthu v. Vana Koilpillai 17 Mad 379

[12] Manindra v. Mahalaxmi Bank AIR 1945 PC 105; Binodini v Hriday Nath 22 CWN 424: Nalidas v Ishan Chunder 9 CWN 49 (PC).

[13] Durga v Atul Chandra (1938) 1 Cal 75; Kalinath v Nagendra Nath 62 CWN 770