In India, the legal framework for the inheritance of both movable and immovable assets of a deceased individual is governed by either testamentary succession or non-testamentary succession. Testamentary succession involves the distribution of assets based on the deceased person’s will, while non-testamentary succession is determined by the applicable succession laws, which are influenced by the religion of the deceased person.
A “Will” is defined under Section 2(h) of the Indian Succession Act, 1925 (“the Act”) as a formal declaration of a testator’s intentions regarding the distribution of their properties and assets after their death. In simpler terms, a Will is a legal document created by a testator during their lifetime to specify how their assets should be distributed after their demise. Importantly, a Will can only be revoked during the testator’s lifetime.
Probate is a critical aspect of this process. It is the legal process used to certify the contents and authenticity of a Will. Probate can only be granted by a court with the necessary jurisdiction to an executor named in the Will. Section 2(f) of the Act defines ‘Probate’ as a certified copy of a Will, sealed by a court with competent jurisdiction, along with a grant of administration to the testator’s estate. The Act mandates probate of a Will in certain circumstances, depending on the religion of the individual creating the Will and the geographical location involved.
However, not all Wills require probate. Failure to obtain probate does not render a Will invalid, but it may be necessary to establish legal title. Probate is mandatory under specific conditions, such as when the Will is executed in Kolkata, Chennai (Madras), or Mumbai, or when it relates to immovable property situated in these cities.
If these conditions are not met, probate is not mandatory. For example, if a Will is executed in Delhi and does not involve property in Kolkata, Chennai, or Mumbai, probate is not compulsory.
Probate must be obtained from a court with jurisdiction. A District Judge, as per Section 264 of the Act, has the authority to grant and revoke probates, similar to the powers exercised in civil suits. High Courts also have concurrent jurisdiction over probate matters. However, except for the High Courts in Kolkata, Chennai, and Mumbai, other High Courts may only accept probate applications if authorized by an official state gazette notification. High Courts can also appoint judicial officers as District Delegates to handle uncontested probate cases.
Therefore, a probate application should be made to a District Judge (or District Delegate, where applicable) in whose territorial jurisdiction the testator had a fixed residence right before their death. However, if the testator had assets located outside the state exceeding specified thresholds, the application must be made to the High Court.
To obtain probate, a Probate Petition must be filed within the general limitation period of 3 years from the date of the testator’s death, as prescribed by Article 137 of the Limitation Act of 1963. The process includes the following steps:
Application by the Executor: The process begins with the executor (the person named in the Will) filing an application (accompanied by court fees based on asset value) to a District Judge through a probate petition. This petition is filed typically seven days after the testator’s death and follows the Code of Civil Procedure, 1908. The petition includes details of the testator’s death, a copy of the Will, a list of assets expected to be transferred to the petitioner, and information about the testator’s fixed residence or property.
Verification of Will’s Authenticity: Under Section 280 of the Act, the petitioner and the witnesses to the Will must verify the Will’s contents. Section 281 requires one of the witnesses (if available) to declare that they witnessed the Will’s signing. Along with these declarations, the petitioner must provide documents to the court to prove the probate’s authenticity. These documents may include the testator’s death certificate, certificates of surviving family members, identity proof establishing the executor’s relationship with the testator, and more.
Issuance of Probate: Upon receiving the petition, the court verifies the details, issues notices to the deceased testator’s nearest kin for probate claims, and seeks objections from the public. If no objections arise, and the testator’s kin consent to the probate, the court grants and seals the probate.
In summary, the process of succession in India involves various complexities, including those related to Hindu Undivided Families (HUFs), ancestral properties, family settlements, and the division of family estates. Future articles will delve into these topics in greater detail.
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