Legal Guide

What is Meant by the Probate of a Will?

by Bhavya Choudhary · 4 min read

Probate of a Will

Introduction 

  • A person’s assets might be transferred after his death in one of two ways. A will is a legal document that outlines a person’s desires for how they want their possessions to be distributed when they pass away. 
  • The testator or testatrix is the person who created the Will.
  • When there is no legal Will left by the deceased person, the second method—which is automatic—is used. It may also occur with regard to the assets that were not left behind by his Will.
  • In these situations, his whole estate or any assets not left in a Will pass to his lawful heirs in accordance with the rules of the succession law that applies to him based on his religion.

Probate of a Will: What is it?

  • According to the Indian Succession Act 1925, “Probate of a will” is defined as a copy of a will that has been certified under the seal of a court having jurisdiction and has been granted administration of the testator’s assets.
  • By creating a will, a person communicates his desire for particular others, who are often mentioned in the Will, to carry out his desires after his death. Executors are the people designated in a will to carry out that person’s wishes. 
  • A Probate of a will is a procedure that a court uses to formally certify a will. The Will is eventually established and proved by the Probate of a will. 
  • A Probate of a will is a resounding demonstration that a will was legitimately executed, authentic, and the deceased person’s last Will.

Is a Probate of a Will necessary?

  • The general people are utterly uninformed about the conditions in which a Will is required. Will Registration must be as soon as possible to avoid any dispute in the future. For Will registration, one must take legal consultation. 
  • According to the Indian Succession Act of 1925, a Probate of a will is required if a will is written in an area that was governed by the Lieutenant-Governor of Bengal or inside the territorial limits of the regular original civil jurisdiction of the Madras and Bombay High Courts of Judicature.
  • The clauses pertain to the locations as they were known at the time the Indian Succession Act of 1925 was enacted. These can be taken to refer to the modern-day municipal boundaries of Mumbai and Chennai, respectively, and the states of West Bengal.
  • If a Hindu, Jain, Sikh, or Buddhist makes the Will, the aforementioned provision of necessary Probate of a will is applicable. 
  • It may be interesting to know that a Probate of a will is required even if the Will does not include any immovable property if it is located within the boundaries of certain locations.
  • Therefore, unless one of these three situations applies, a will does not need to be a Probate of will. Even though it is not required, there are no legal restrictions for obtaining a will’s Probate of a will. 
  • In situations where there is a chance that the validity of the Will may be disputed in the future on any basis, it is advised to get a Probate of a will.

Who may file a Petition for Probate of a Will?

  • Only the executor designated in the Will may request a Probate of a will. The executor must submit an application for a Probate of a will under the court’s seal, attesting to the validity of the Will. 
  • If there are several executors, the Probate of a will may be awarded to them all at once or in accordance with the timing of the application. 
  • If there is no executor named in the Will, the court just issues a basic letter of administration rather than a Probate of a will.  

Who is an Executor of a Will?

  • An individual who accepts the duty of managing the division of the deceased person’s assets in accordance with his or her desires is referred to as the executor of a will. 
  • Mentioning the name of an executor in the Will is not a necessity. However, it is wise to choose an executor who will make sure that the Will is carried out accurately and in accordance with the deceased’s intentions. 

Requesting Probate of a Will if a Will does not name an Executor

  • The legal heirs of the testator might appoint a person as an administrator of a will if the testator did not name an executor in their Will. This person has the right to dispose of the assets mentioned in the Will. 
  • One of the legal heirs of the testator may, however, file a petition in the court for a person to be appointed as the administrator of the Will if the deceased’s legal heirs have not yet made a decision upon who to choose as administrator. 

What are the objections to a will and claims for Probate of a will?

A will might be difficult to contest. Since the testator is not yet living to defend himself, courts scrupulously adhere to wills. However, a will can be completely or partially revoked if a challenge is successful and the court is persuaded. Before contesting the Will, one must speak with an attorney to grasp the laws. In a court of law, a will can be contested due to many reasons discussed below:

  • Inadequate execution: A will must be written and properly signed by the testator to be legitimate. Two witnesses who are required to testify to the Will must be present, and it must be done in their presence. A will can be contested if the procedure is not followed.
  • Lack of knowledge or approval: A person may contest a will if they can demonstrate that the testator was unaware of the contents when he signed the document.
  • Undue influence: A will can be contested by demonstrating that it was obtained by fraud, forgery, or other types of coercion, which entails a lack of free Will or inadequate consideration of the implications of the bequests made through the Will.
  • Absence of testamentary intent: In this situation, the plaintiff must establish that the testator lacked the intent to make a will.
  • Fraud or forgery: The challenger of a Will must prove that the Will was either forged, did not include the testator’s signature, or was the result of some other fraudulent activity.
  • Cancellation of a previous Will: Even though a Will has been filed with the court, it may still be contested. Even though a will is recorded, the court will still review it if there are any dubious circumstances. If a new, legitimate Will is created, even if it is unregistered, it may not be regarded as the last testament. 
  • Family claims: A family member may contest a will if it can be demonstrated that the provisions made for them in the Will were insufficient. 

Conclusion 

A will cannot be probated prior to the testator’s death. After the testator’s death, only Will’s executor may file a petition in the court for the Probate of a Will. Legal consultation must be taken when there is any doubt in the Probate of a Will.

Registration of the Will involves a technical process. Therefore, it is recommended to take legal consultation for the registration of a Will.

Bhavya Choudhary

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Bhavya Choudhary

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