“Where there is a will, there is a lawsuit” is a saying on a lighter note often heard in the Courts and among legal practitioners. Will is a translation of the Latin word “Voluntas”, which was a term used in the text of Roman Law to express the intention of a testator. It is of significance that the abstract term has now come to mean that document in which the intention is contained.[i] A will is otherwise known as a testament. The word ‘testament; is derived from the Latin term “Testatio mentis” which ‘testifies the determination of the mind’. Probate, on the other hand, is a grant given by the appropriate Court that serves as conclusive evidence that there are no suspicious circumstances surrounding the will and that the will was duly executed and attested.
The concepts of will and probate are governed by the Indian Succession Act, 1925. As per S.2(f) of the Act ‘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 S.2(h) of the Act ‘will’ means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
Concept of Will
From the definition under the Act it can be deduced that the contents and chief characteristic features of a will are:
1. There must be legal declaration of the intention of the testator.
2. The declaration must be with respect to the property of the testator.
3. The declaration could be effective and operative only from ‘after’ the death of the testator.
4. The testator has the liberty to revoke the will at anytime during his life time.
As per the Indian Succession Act, there are two kinds of wills – the privileged will and unprivileged will. Privileged wills are only for soldiers and mariners, whereas unprivileged wills are the ordinary wills executed by the others. An unprivileged will, hereinafter referred generally as ‘will’, should be executed and attested as per the Act.
S.63, clauses (a) and (b) deal with the execution of a will.
1. The will must be in writing.
2. The testator should sign or affix his mark to the Will or it should be signed by some other person in his presence and by his direction. The signature or mark should be so fixed that it shall appear that it was intended thereby to give effect to the writing as a Will.
S.63, clause (c) deals with the attestation of a will.
1. The will should be attested by two or more witnesses, each of whom has seen the testator or the other person sign or affix the mark, as the case may be OR has received any personal acknowledgement from the testator himself.
2. Each of the attesting witnesses must sign the will in the presence of the testator.
3. All the witnesses must be present at the same time.
Another important aspect is the capacity of a person to make a will. A conjoint reading of Ss.59 and 61 of the Act together lay down that –
1. The testator must be a person of sound mind.
2. The testator must be a major.
3. The testator must have been in a free state of mind i.e., he/she must not have been induced by any fraud, coercion or compulsion to make the will.
Further, it is also settled law that a will need not be registered. In majority of the cases, wills are not registered. Drawing inference against the genuineness on mere grounds of non-registration of will is wholly unwarranted.[ii]
Concept of Probate
The Indian Succession Act, 1925 is a self contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate Court. The probate proceedings shall be conducted as per the manner provided in the Act and in no other way.[iii] Part IX of the Indian Succession Act deals with Probate, Letters of Administration and Administration of the assets of the deceased.
The effect of probate of a Will is that, when granted it establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such.[iv] Probate will be granted only to an executor appointed by the will, where such appointment may be express or implied.[v] Probate cannot be granted to any person who is a minor or is of unsound mind or to an association of persons.[vi]
A probate court cannot go into the question of title and it is a function of the probate court to see in the probate proceedings whether the Will has been duly executed, whether the testator at the relevant time was in a sound and disposing state of mind and whether the testator had understood the nature and effect of such disposition and put his signature and/or mark to the document at his free will and volition. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.[vii] It is also settled law that a probate court cannot go into the contents of the will, even with the consent of the parties.[viii]
A probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. A decision of the probate court would be a judgment in rem which would not only be binding on the parties to the probate proceedings but would be binding on the whole world. Therefore, a solemn duty is cast on the probate court.[ix]
Is Probate Mandatory?
Part VI of the Indian Succession Act, 1925 deals with Testamentary Succession. The applicability of the Part in general is governed by S.57 of the Act. The provisions of Part VI apply to –
(a) To all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, 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
(b) To all such wills and codicils made outside those territories and limits insofar as it relates to immoveable property situate within those territories or limits,
Hence, probate is mandatory only if the will or codicil has been made in any of the three Presidency towns or if the property is situated therein. Else, probate is optional.
Application for Probate
An application for probate or for letters of administration is to be filed u/S.276 of the Act. Probate is to be granted only if an executor is appointed under the Will. Otherwise, the request should be one for the grant of letters of administration.[x]
An application for Probate or for Letters of Administration has to be made under S.276:
1. By producing
2. The Original Will (or)
3. In exceptional cases as provided under Ss.237 – 239, a copy of the Will
4. Annexing a statement containing –
5. the time of the testators death,
6. that the writing annexed is his last will and testament,
7. that it was duly executed,
8. the amount of assets which are likely to come to the petitioner’s hands, and
9. When the application is for probate, that the petitioner is the executor named in the will.
After the application has been made, the court having competent jurisdiction takes up the matter and issues notice to the nearest heirs and kin of the deceased. A consent affidavit may be filed by the relatives if they agree with the contents and mode of execution and attestation of the will. If not, a Testamentary Original Suit is filed. Sometimes, a Caveat against the grant of probate may also be lodged by the kindred. In such cases, the caveat proceedings are completed. If it is found that granting the probate would do justice to the intention of the testator, then the probate is granted under the seal of the competent court. A probate shall be granted only after the expiry of seven days from the date of death of the testator.[xi]
From the above discussion, it can be easily understood that a will is an instrument that expresses the intention of the testator whereas a probate is a Court proceeding that authenticates the contents, mode of execution and attestation of a will. Though application for Probate is not compulsory in a majority of cases, it is highly recommended to get the will probated. This ensures the due execution of the will, which to a great extent reduces the discrepancies and suspicions associated with a will.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] Uma Devi Nambiar v. TC Sidhan, 2004 (2) SCC 321.
[ii] Ishwardev v. Narisingh, AIR 1954 C 280.
[iii] Chiranjitlal Shrilal Goenka v. Jasjit Singh, 1993 (2) SCC 507.
[iv] S.227, Indian Succession Act, 1925.
[v] S.222, Indian Succession Act, 1925.
[vi] S.224, Indian Succession Act, 1925.
[vii] Ishwar Narain Singh v, Smt. Kamta Devi, AIR 1954 SC 280.
[viii] Sushila bala Saha v. Saraswati Mondal, AIR 1991 Cal 166.
[ix] Rukmani Devi v. Narendra Lal Gupta, AIR 1984 SC 1866.
[x] Elsy & Ors. v. V. K. Raju & Ors., AIR 2007 Ker 235.
[xi] S.293, Indian Succession Act, 1925.