The Indian Succession Act, 1925 states that probate is the official proof of a will. It is issued to the person or executor who is authorized to execute or implement the Will and add a legal validity to it. Probate, as defined in the India Succession Act, 1925, is a copy of Will, certified under the seal of the jurisdiction of the competent court with a grant of administration of testator estate. If there are no executors of the Will, then a simple letter of administration is issued by the court, and no probate is declared. When the person applies for probate, the Will is proved, and the court keeps the original copy provided to the executor with a certificate that proves the genuity of probate and copy of Will.
Importance of a Probate
Probate is a document filed in court in order to prevent the administrators of a deceased person's estate or executors from getting permission to manage the estate assets. A probate caveat is filed to challenge a Will. For example, when someone believes that the Will was forged or was not written and approved by the deceased person, the application for probate can be filed.
Although, there are many reasons to specify why probate has become necessary. For, eg, a property within a society is bequeathed to an individual, and the person wants to occupy the same. Moreover, as per the guidelines of society register, the owner has died and left the Will, unless the executor shows probate stating his/her authority regarding transferring the property, the society might not agree to transfer the property. Probate is issued for a will attached by any Indian Hindu persons namely Buddhists, Parsis, Jains or Sikhs.
The executor has no right to establish the application of probate in any other court of justice unless a jurisdiction of the competent court has granted probate of the Will under which the right is claimed. Probate is compulsorily required, only if Will is made in any one of the two cases above:
(i) When there are problems at the time of existence of Will
(ii) When the beneficiaries have predeceased the testator and such other cases.
Letter of administration is entirely different from probate. A letter of administration is allotted when the Will has no name of the executor, or deceased person does not make the Will.
Application for Probate
It is issued concerning Section 57 and Section 213 of the Indian Succession Act, 1925. The probate is granted to the executor with a copy of will attached in succession by the High Court.
The person can apply after seven days of the death of the Testator, i.e. the person who is the owner of the property distributed it and made the Will. The application for probate can be made with the help of an advocate or a lawyer, under whose jurisdiction the property is present.
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Documents Required for Probate
a. The Will should be genuine and the last Will made by the testator.
b. The proof of death of the testator.
c. That the Will is executed in the clear conscience of the testator.
Grant of Probate
Once the application is presented before the court, it will be verified by the respective authorities, and the nearest kin of the deceased will be intimated about the probate. The public is allowed to raise any objections by publishing a notice in the newspaper. If no objections are received from the general public, the probate is issued. It is compulsory for the applicant to pay the court fees at the time of application for probate. The court fees are based upon the value of the immovable assets.
Though probate cost you the court fees, lawyer fees and takes time to obtain, it is essential, if there are various assets to handle, and those immovable properties exist in various parts.
Grounds on which Will can be challenged:
• Lack of execution: A valid Will has to be in written form and signed in the presence of two witnesses by the testator. Will can be challenged in the court if the process is not followed.
• Lack of intention of the testator: The applicant has to prove that there is no intention of the testator to make a Will. Moreover, this plea is rarely used, as it is difficult to prove.
• Lack of capacity of testamentary: The law says that adults are presumed to have the testamentary capacity as people above the age of 18 can make a Will. Therefore, the Will can be challenged based on dementia, senility, insanity, or that the testator was under the influence, or in some other way lacked the mental capacity to make a Will.
• Lack of knowledge: Challenger of Will can present a ground that the testator was not aware of the facts while signing it.
• Undue influence: Challenger of Will can challenge the same by showing that it was procured by forgery, fraud, or undue influence.
• Forgery or Fraud: The burden of proof lays on the challenger of Will to prove that the Will is forged (made as a result of the fraudulent act) or was not signed by the testator.
• Family claims: A family member can challenge a will because they are not provided sufficiently in the Will.
• Revocation of Will: A registered Will can be challenged in the court. The fact that a Will has been registered will not, by itself, be sufficient to dispel all suspicions regarding it.