PROBATE OF A WILL : LAW & PROCEDURE

 

PROBATE OF A WILL :  LAW & PROCEDURE

                                                   ANIL K KHAWARE

                                                   ADVOCATE

The American Poet & civil war veteran Amborse Gwinnet Bierce had aptly written: “Death is not the end, there remains the litigation over the estate”.  The need of probate emanates after death, in case of death of Testator/Testatrix leaving a Will. It appears that the word probate have its origin from Latin “Probare” that implies “to test” or “to prove”. The context of its use, of course, relates to Will. 

As emphasized above, the issue of probate is a post death situation. A  testator of a Will, if  dies after duly executing a Will, in respect of his self acquired property, then, with a view to accord it sanctity and enforcement, the competent court of law is to be approached by the legatee for seeking certificate of probate with regard to genuineness of Will. It should be borne in mind that in probate cases, the courts does not deal with the title, but accord certificate to the genuineness of Will and then it is left on the Executor named in a Will to disburse the estate of deceased in accordance with the provisions of Will. The probate of will is sought only to a limited extent as regards its execution and veracity. To recapitulate, thus, “Probate” is a certification of Will by a competent court under its seal. The probate can only be granted to the Executor of Will. If the executor in a Will is not named, then Letter of Administration can only be applied for. The probate shall be necessary, if the will is for immovable assets in multiple states. As a competent courts of law certifies  the Will by way of probate of Will, it is conclusive proof that the will was executed validly, is genuine, and is the deceased’s last will. One interesting point about it is that unlike any general suit between parties, the probate to the Will shall be a “judgment in rem” i.e it applies to the whole world.

Probate is defined under the Indian Succession Act, 1925 as –  “A copy of will certified under the seal of the court of competent jurisdiction with a grant of administration of the estate of the testator”.

As far as Will is concerned, it is a legal document that encapsulates the deceased person’s wishes. Upon the demise of the person executing Will, the legal course is set in motion. The maker of the Will is known as the Testator/Testatrix (If female). The Will executed by a Testator can be revoked at any point of time and only the last Will executed by the Testator shall be final and liable to be implemented.

In the same breath, it is also to be narrated that when an individual dies intestate i.e without leaving a Will, then the estate of such people shall devolve on the legal heirs of such people in accordance with Hindu Succession Act 1956 in case of Hindus or such other law for the time being in force. However, if the testator leaves a Will before his death, thereby, specifying the mode and manner of distribution of his assets, then, such assets shall only be distributed in accordance with the wishes of testator and ordinary law of succession shall stand superseded to the wish of the deceased, provided, the properties sought to be bequeathed under the Will is self acquired property of Testator. The Indian Succession Act 1925, contains the principles and procedure in this regard. The solemnity of Will by way of a last wish of testator is preferred to be honoured and sanctity is attached thereto, unless, any manipulation or suspicious circumstances is pervasively noticed. The Will is not required to be mandatorily registered, but it is advisable to register it so as to negate any procedural issues, controversies or doubts.

Although the probate of the will is not mandatory in every state, still, it is advisable to obtain probate in cases where there is a probability of the validity of the will being challenged on any grounds in the future

Procedure for seeking probate of a will

Probate is defined under the Indian Succession Act, 1925 as under:

“A copy of will certified under the seal of the court of competent jurisdiction with a grant of administration of the estate of the testator”.

The person who makes a will expresses his wishes to be executed after his death by certain persons named in the will. The persons named in the will to execute it are called its executors. Only the last Will of testator shall pass muster, the previous Will, even if executed shall have no effect, after the execution of the last will.

Section 276 of the Indian Succession Act 1925 contains the principles & provisions of filing a probate petition. The petition is required to be made in English or the language in ordinary use in proceedings before the concerned court. The original Will has to be annexed with the application.

Probate can be granted only to the executor named in the will. It is otherwise necessary, if the will is for immovable assets in multiple states. Granting of probate is conclusive proof that the will was executed validly, is genuine, and is the deceased’s last will. The probate of Will is akin to judgment in rem i.e applicable to the while world and not only party or parties to the lis.

The following is the process for obtaining the probate of a will-

(i)    The executor of the will is required to file a petition in a competent court of law i.e District Court of the area within the territorial limits, whereof, the testator ordinarily resided. In case, the value of assets which is the subject matter of the Will, is more than Two (2) Crore, then the probate petition shall be filed before Delhi High Court (In case of Delhi). Moreover, if the high courts anywhere else in India has original jurisdiction and if the value of the assets relates to the jurisdiction of that high court, the same shall be filed in concerned high court, else in District Courts as emphasized above. 

(ii)   The original Will is required to be filed along with petition in a concerned court for grant of probate. The petition should bear the particulars of the deceased’s legal heirs so as to enable the court to issue notice of hearing to them.

(iii)  The executor will have to pay the applicable court fees depending upon the value of the assets, though, it is at the stage of passing order granting of probate only and not before.

(iv)  The petitioner or Executor need to establish the proof of death of testator’s (death certificate), valid execution of Will  and confirm that this is the last will of the deceased.

(v)   The publication of citation in newspaper and in the conspicuous place and notice Board of court also the same need to be published. The objections, if any against the probate is invited by way of publication of such notices.

(vi)  If there are no objections, then the court grants the probate.

(vii) If there are objections, then, evidence is to be adduced and arguments are to be held in support and in opposition to probate.

(viii) The Executor of the Will is required to dispel any suspicious circumstances surrounding the execution of Will, if alleged by any objector.

A Will, therefore,  is a legal document that specifies the person’s intention and wishes, which needs to be performed after his/her death. The maker of the will is known as the testator/testatrix, and it can be revoked only during his/her lifetime.

The cost of obtaining probate varies from state to state. The fees depend on the value of the assets, which are the subject matter of the Will and the petition. As per the Stamp Act of the concerned states the stamp duty is payable.  Generally, it varies from 2-2.5% of the value of the estate of testator.  

Details required for filing a probate Petition 

Name of the Executor, the other legal heirs of deceased testator and the list of properties sought to be bequeathed need to be mentioned in the petition.  

Particulars of deceased- 

(i)  Full name

(ii) Nationality/ Residence. 

(iii)         Last permanent residential address (where the deceased resided at the time of his/ her death)

(iv)         Marital status of the deceased

(v)  Occupation of the deceased at the time of his/ her death

(vi)         True copy of death certificate is required to be annexed. 

PARTICULARS RELATED TO Will 

(i) Date of execution of the Will

(ii)  Place of execution of the Will

(iii)    Whether the Will was registered or not?

Particulars LRs of deceased - 

(i) Personal details of the heir/s of Testator/deceased

(ii)  Relation of the heir with the deceased

(iii)  If any heirs have pre-deceased the deceased?

Executor

(i) Number of executors appointed

(ii)          Name of the executor. 

(iii)        Nationality /residence. 

(iv)        Age

(v)         Latest permanent residential address

The DESCRIPTION OF propertIES to be bequeathed- 

(i)           Nature of property-  movable/ immovable 

(ii)         In case of immovable property- address and description of the property

(iii)       In case of intangible or intellectual property- registration details of a trademark, copyright, patent, design thereof if any

LAW

Having narrated the definition, requisites, process and procedure of probate of Will, it is also imperative to ascertain as to what are the legal precedents.

Limitation for filing an application for probate

The limitation Act 1963 or Indian Succession act 1925 does not envisage limitation period for preferring a petition for a probate to a Will. It is already elucidated that the probate shall be necessary with a view to obtain certification of genuineness to Will issued by a competent court/s of law.

It is nevertheless to be borne in mind that as per Article 137 of the Limitation act 1963,wherever limitation period is not provided for, the residuary article 137 shall be applicable. The limitation Period as per Article 137 is Three (3) years.

As regards all other aspects, the following judicial precedents are worth-mentioning. 

S.N	PARTICULARS	REMARK
1.	Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387	“the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unnatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
2.	Pawan Jolly & Anr Vs State 188 (2012)DLT 332	No evidence on behalf of the objector that Will was not executed. Only the manner in which it was executed was challenged. Question of suspicion does not arise. No medical evidence produced or proved by the objector. Objector had already vacated suit premises when the deceased was alive. Probate Granted
3.	Khazan Singh Vs State 45 (1991)DLT352 (DB)	Concept of Will itself envisage preference of one over other. Allegation that Will not genuine need to be proved.
4.	Santosh Kakkar Vs Ram Prasad & Ors 71(1998) DLT 147	Propounder need to show that Testator was in sound disposing state of  mind and understood the nature of disposition
5.	Meenakshi Ammal (dead) through LR & Ors Vs Chandrasekaran (2005) 1 SCC 280	The propounder need to prove (i) testamentary capacity of testator (ii) signature of testator (iii) witnessing by two witness. If suspicious circumstances alleged then propunder need to dispel that.
6.	Sridevi & Ors Vs Jayaraja Shetty AIR 2005 SC 780	The propounder need to show that:- (i)            Will was signed by Testator (ii)   In the relevant time he (testator) was in sound state of mind (iii) The testator understood the nature and disposition (iv)  The testator had put his signature as per his free will. (v)   The testator had signed in presence of two witness who attested the will in presence of  each other. The propounder is required to show no more.
7.	L.C Lai & Ors Vs State 2002 (65)DRJ 130	The soundness of mind of deceased is presumed while executing a will and the burden on propounder is very light, unless cogent material exists to the contrary. It is also well settled that mere deprivation of the natural heir in a will by testator should not be taken as suspicious circumstances, because the whole idea of execution of will is to interfere with the natural course of succession. A Will contains last desire of Testator and the court normally need to go by the wishes of testator.
8.	Rabindra Nath Mukherjee & Ors  vs Panchanna Banerjee & Ors AIR 1995 SC 1684	Lays down guidelines for the courts to adopt in probate of will petition.

 

WITNESSING OF WILL

The Executor/petitioner is mandated to prove the document i.e Will by examining the attesting witnesses in court. The execution of the Will is required to be proved by at least one of the attesting witnesses, if alive, and who is otherwise capable of giving evidence. These are statutory provisions and cannot be dispensed with.  Of course, if a Will is registered the rigour of proof is mitigated somewhat.

In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716,DB  After noting the law declared in this regard, the hon’ble Delhi High Court Division Bench 

" Courts are not expected to be satisfied that a bequest is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have made it. ... There is nothing in law that prescribes that the testamentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."

It is further held:

“…In probate cases, the Courts have to first determine whether the propounder of the Will has discharged the burden placed on him by law under Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act. This burden placed on the propounder would be discharged by proof of testamentary capacity and proof of the signatures of the testator. The burden then shifts on the contesting party to disclose prima facie existence of suspicious circumstances, after which the burden shifts back to the propounder to dispel the suspicion by leading appropriate evidence”.

 In M.L. Abdul Jabhar Sahib Vs H. V. Venkata Sastri & Sons & Ors 1969 AIR 1147,  the hon’ble Supreme Court had the occasion to  deal with Section 3 of the Transfer of Property Act that defines the “attestation” the Hon‟ble Supreme Court has held as under:

"….. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation u/s 3 are : (i) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (ii) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature amino attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.

In a matter reported as Girja  Datt Singh Vs Gangotri Datt Singh AIR 1955 SC 346 in paragraph 15 the Hon‟ble Supreme Court has held that:

“ mere signature of witnesses at the foot of the endorsement of registration cannot be treated as attesting witnesses as Section 68 of the Indian evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the Will. So the test is whoever has put over his signature must show animo atttestandi to attest the testament. A person who had put his name under the word "scribe" or identifier cannot be attesting witness as he has put his signature only for the purposes, the bequeath that he has scribed or identified the document. The scribe or identifier can be a scribe or identifier as well as can be an attesting witness subject to the condition that it must appear from the testament that he has scribed the document as well as he has attested the document as an attesting witness, meaning thereby it must appear that he has intention to attest the document”.

In INDU BALA BOSE & ORS Vs. MANINDRA CHANDRA BOSE & ANR. 1982 AIR 133 SC the Supreme Court has specifically held that even if the Will is registered, still, the propounder has to dispel all suspicious circumstance.

                      RECENT JUDGMENT OFSUPREME COURT

                      When both attesting witnesses are dead.

V. Kalyanaswamy (D) By LRs. vs L. Bakthavatsalam (D) Thr. LRs. . CIVIL APPEAL NOS.1021-1026 OF 2013, ETC. (Decided on 17.07.2020)

“Section 68 of the Indian Evidence Act, 1872 deals with proof of execution of a document required by the law to be attested. A perusal of the same makes it clear that in the case of a Will, being a document which is required to be attested by Section 63 of the Indian Succession Act, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence, then, the Will can be proved only if one of the attesting witness is called for proving its execution”.

In the above case the hon’ble supreme court on the facts of the case also held that even when both the attesting witnesses are dead, the probate of will can still be granted if in some other proceedings evidence of attesting witness is recorded.

If the Will is found forged then Section 95 IPC is attracted. Section 340 of Cr.P.C can be invoked ( ref: IV (2010) CCR 442-Sanjeev kumar Mittal Vs State)

Effect of handwriting expert report on probate of will

Supreme Court:

In a catena of decisions, the Courts have held that the expert opinion must always be received with care and caution. The Supreme Court has held that it is well settled that handwriting expert opinion must always be received with care and caution and that it is unsafe to base a Judgment purely on expert opinion, without substantial corroboration. In  Murarilal Vs State of M.P  1980 SC 531, the Supreme Court has held as follows:

“...having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight”.

It is further held by the Supreme Court there is no rule of law, nor any rule of prudence which has crystalized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases, where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight.

                                  EXECUTOR:

If the legatee is not named as Executor, the probate in respect of the Will in question cannot be granted in favour of the legatee, then, in accordance with the provisions of Section-222 of Indian Succession Act, which provides that probate shall be granted only to an Executor appointed by the Will. In these circumstances and in view of the provisions of Section-232 of Indian Succession Act, the legatee shall be entitled only to Letter of Administration in respect of the property mentioned in the said Will.

If bequeath is more than the share of testator

In Narinder Singh Rao v. Air Vice-Marshal Mahinder Singh Rao & Ors.: (2013) 9 SCC 431, It was held by hon’ble Supreme Court that a testator cannot bequeath more than or excess of what his/ her share is. If more than the share is bequeathed, then the bequest has to be treated only to the extent of the share held by the Testator /Testatrix.

Payment of court fee: Mode and manner

In a probate petition, once the order of probate is passed only at that stage the court fee by way of non judicial stamp paper is required to be submitted as per the prevailing stamp Act of the state and decree is thereupon drawn up. Surety bond also is to be executed. The same is required to be done to safeguard the subsequent claim of any third party, who may have inadvertently or due to some reason failed to approach court subsequent to notice or failed in joining proceedings. 

A.G. Hariharan's case (AIR 1983 Kant 213) (supra), wherein it has been held that the relevant date for purpose of calculating the court-fee payable on probate is the date on which order granting probate has been passed

Rajasthan High Court

Vasudeo vs Lal Singh And Ors AIR 1992 Raj 133

Wherein it has been held that the relevant date for purpose of calculating the court-fee payable on probate is the date on which order granting probate has been passed.

The cost of obtaining probate varies from state to state as the District Court grants it. The fees depend on the value of the assets, which are the subject matter of the petition. In addition to court fees.  If there are objections, then the probate petition becomes the original suit, and the parties will have to lead evidence and argue the matter. The court will pass judgment in the probate suit based on the evidence and arguments.

The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.

The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence. Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties

REMARK

The Hon’ble Supreme Court in Chiranjilal Shrilal Goenka vs. Jasjit Singh and others 1993 SCR (2) 454, 1993 SCC (2) 507 held in the following words:

“On a conspectus of the above legal scenario we conclude that the Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original Will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Indian Succession Act. It is a judgment conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal in civil courts as provided under Section 299 of Indian Succession Act, 1925, except under the Act itself and such appeal can be filed in high court/s. Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix or executor. It is already seen that the executrix was nominated expressly in the will is a legal representative entitled to represent the Estate` of the deceased but the heirs cannot get any probate before the Probate Court. They are entitled only to resist the claim of the executrix of the execution and genuineness of the Will. The grant of probate gives the executrix the right to represent the estate of the deceased, the subject-matter in other proceedings”.

Apart from the discussion hereinabove, the above dicta of hon’ble Supreme Court is self contained and crux of probate i.e law and procedure is adequately explained. To conclude, thus, a probate accords sanctity to a Will and clothe it with legal apparel so as to shield the estate of testator from any unwanted or frivolous objection or claims against the definite beneficiaries. Although having Probate for a Will is an effective method, and sometimes indispensable, it is not obligatory in each matter related to a Will. The strategies, shall thus, be contingent upon, nature and shared ownership of the property and estate of deceased.

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