Understanding Probate in a Will

Probate means the certification of a copy of the will with the seal of the court. This is the initial legal step to be taken (in the case of testamentary inheritance) and is optional in major parts of the country.

This refers to the certification of a copy of the will with the seal of the court. It also allows the right to administer the testator’s property.

Under the section 222 of the Indian Succession Act of 1925, a will can only be given to an executor. An individual not named directly or indirectly cannot be allowed a testamentary right. An administrative letter is submitted if the will does not appoint an executor or if the deceased individual did not make a will.

Ahead of filing a petition for a will or a letter of administration, an person must show the proof  that he is an executor or testator invests him with property.

An invalid infirmity under a will cannot be recognized as valid by issuing a will. Thus, the possession bequeathed by the testator, which he did not have the right to bequeath, will not be justifiable, even if the will is satisfied.

The question before the court is if the will is authentic. The court does not have the right to conclude if the property that the testator indicated in the will be in the ownership of  him.

The relevant court only rule out if the document presented in court in the form of a will is the last will and testament of the deceased.

It also contemplate whether the document was drawn up and certified in in line with the law and whether the testator was of sound mind when making the will.

In one case, the Supreme Court noted that the question of whether an item is good or bad is not within the jurisdiction of the probate court.

The executor or beneficiary may apply to the appropriate court for the granting of a will. A will may be granted when the will has been proven in accordance with the provisions of the law.

However, if the court is suspicious of certain elements, it insists on strict proof. The will in this case may not be granted.

An application for the issuance of an inheritance may be filed by the executor or the beneficiary. Once filed, the court publishes a public notice in any leading newspaper to generate public objection, if any.

At the end of the notice period, the court records evidence on behalf of the applicant in support of the execution of the will.

After the evidence is recorded and the court is satisfied with the proper execution of the will, the will is granted.

The prescribed court fee must be paid after the issuance of the writ. After that, the applicant receives a court order on the will and can dispose of the property of the deceased in terms of the will.

A situation may arise where the application for a will is challenged by others. If so, the relevant court hears the case before making a decision.

The performer/beneficiary should know the following:

• A will may be confirmed by a district judge or the High Court if the High Court has original jurisdiction.
• The original will must be submitted together with the will application.
• The execution of the original will must be proven by presenting witnesses to the will. This is the best proof.
• After making sure that the will was properly executed, the court issues the will.
• The granting of a will does not in itself create any title to property.
• Likewise, making a will does not give the plaintiff the right to own the property, the ownership of which is in dispute.
• A will cannot be given to any person who is a minor or mentally ill, or to any association of persons, unless it is a company as provided in Section 223 of the Indian Succession Act, 1925.
• If any addendum is discovered after the granting of the will, the court may grant a separate will of that addendum.