A 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. As per Section 227 of the Indian Succession Act, 1925, the probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.
In this blog, we will try to enumerate the process of obtaining a probate for the will from the District Judge of the relevant jurisdiction.
STEP 1: MAKING PETITION FOR PROBATE
The application for probate shall be made by a petition distinctly written in English or the language in ordinary use in proceedings before the Court in which the application is made, with the will 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 that are likely to come to the petitioner's hands, and
(e) that the petitioner is the executor named in the will.
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 jusrisdiction 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.
Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situated 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 situated.
Additionally, in cases wherein the will is written in any language other than English or the language in ordinary use in proceedings before the Court in which the application is made, there shall be a translation thereof annexed to the petition by a translator of the Court, if the language be one for which a translator is appointed or if the will is in any other language, then by any person competent to translate the same, in which case such translation shall be verified by that person in the following manner, namely:-
"I (A.B.) do declare that I read and perfectly understand the language and character of the original, and that the above is a true and accurate translation thereof."
In accordance with Section 280 of the Indian Succession Act, 1925, the petition for probate 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."
The petition for probate 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)."
STEP 2: PROCEEDINGS BEFORE COURT
As per Section 268 of the Indian Succession Act, 1925, the proceeding of the Court of the District Judge in relation to the granting of probate shall, save as otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908 (5 of 1908).
In all cases, the District Judge may if he thinks proper-
(a) examine the petitioner in person upon oath;
(b) require further evidence of the due execution of the will;
(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate.
Such citation shall be fixed up in some conspicuous part of the courthouse, and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge issuing the same may direct.
Where any portion of the assets has been stated by the petitioner to be situated within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation.
No probate of a will shall be granted until after the expiration of seven clear days from the day of the testator’s death.
STEP 3: GRANT OF PROBATE
After the conclusion of the proceedings, probate of the will to the estate of a deceased person may be granted by a District Judge under the seal of his Court in any case in which there is no contention, if it appears by a petition, verified as hereinbefore mentioned, of the person applying for the same that the testator at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge.
A probate once granted shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout the State in which the same is granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate has been granted.
To understand the basics of probate, click here.
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