Probate is defined under Section 2 (f) of the Indian Succession Act, 1925. It 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.
Simply put, the legal procedure by which a will is formally validated is known as probate. It entails a court with the necessary authority to declare that the document claimed to be a deceased person's "Last Will and Testament" is, in fact, authentic and accurately represents their last wishes. This confirmation gives the executor named in the will the legal power to distribute the deceased person's property according to the terms specified in the instrument.
Also, 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.
WHO SHALL GRANT A PROBATE?
Under Section 264 (1) of the Indian Succession Act, 1925, the District Judge shall have jurisdiction in granting and revoking probates in all cases within his district.
However, probate of the will to the estate of a deceased person may be granted by a District Judge under the seal of his Court only if it appears by a verified petition 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.
TO WHOM A PROBATE MAY BE GRANTED?
According to Section 222 of the Indian Succession Act, 1925, a Probate shall be granted only to an executor appointed by the will. Such appointment may be either expressed or implied necessarily.
Illustrations:-
(i) A wills that C be his executor if B will not. B is appointed executor by implication.
(ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, and adds "but should the within-named C be not living I do constitute and appoint B my whole and sole executrix". C is appointed executrix by implication.
(iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in another codicil are these words, "I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed of different dates". The nephew is appointed an executor by implication.
When several executors are appointed, probate may be granted to them all simultaneously or at different times.
Illustration:-
A is an executor of B's will by express appointment and C is an executor of it by implication. Probate may be granted to A and C at the same time or to A first and then to C, or to C first and then to A.
TO WHOM A PROBATE CANNOT BE GRANTED?
As per Section 223 of the Indian Succession Act, 1925, a Probate cannot be granted to any person who is a minor or is of unsound mind nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by notification in the Official Gazette by the State Government in this behalf.
DISCOVERY OF CODICIL AFTER GRANT OF PROBATE
If a codicil is discovered after the grant of probate, a separate probate of that codicil may be granted to the executor, if it in no way repeals the appointment of executors made by the will. However, if different executors are appointed by the codicil, the probate of the will shall be revoked, and a new probate shall be granted of the will and the codicil together.
GRANT OF PROBATE IN THE ABSENCE OF ORIGINAL 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.
Similarly, 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.
Besides, 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.
IS IT MANDATORY TO OBTAIN A PROBATE?
The general rule is there is no statutory obligation to obtain a probate. However, if the legatee seeks to transfer an immovable property, the Office of the Sub-Registrar may demand probate. In the same manner, banks often insist on producing the probated will. Hence, it is advisable to obtain the probate of a will.
The exception to the above general rule is enunciated in Section 213 of the Indian Succession Act, 1925. According to the said Section, no right as 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, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. However, this Section shall not apply in the case of wills made by Muhammadans or Indian Christians, and shall only apply-
(i) to all wills and codicils made by any Hindu, Buddhist, Sikh, or Jain, on or after the first day of September, 1870, within the territories which at the said 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; and to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits.
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras, and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.
CONCLUSION
Probate 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 is granted.
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