What are the legal requirements
for carrying out the wishes of a testator (i.e. person deceased who leaves
behind a will) after his or her demise? The first important requirements is
that of obtaining probate, wherever it is compulsorily required. A probate is
essentially a copy of the will of the deceased, certified under the seal of a
competent court, with a grant of administration of the testator’s assets.
Once satisfied about the
execution of the will as per requirements under the Indian Succession Act,
1925(ISA), the court grants a probate order which certifies the authenticity of
the will. The Indian Succession Act, 1925, deals with probate and letters of
administration.
It is a misconception that
provisions of ISA do not apply to Hindus at all. Rather, ISA is a complete code
of law of testamentary succession governing Hindus too, except to the extent
modified by the Hindu Succession Act, 1956. Some important pointers are below;
- In
order to apply for probate, the applicant must be able to show that he/she
has been named as an executor under the will of the deceased – either
expressly or by necessary implication. Hence a person not named as an
executor, is not eligible to file probate petition.
- In
probate proceedings, the court deals with questions such as whether will
of the deceased was actually his/her last written will, whether the
testator was of sound mind at the time of writing the will, whether the
will was duly executed and attested, to name a few.
- To
establish the authenticity of a will, it is to be proved that the
signature on the will belongs to the testator. It is also required to be
proved that the will was properly attested by the witnesses.
- If
one attesting witness is able to prove in court that the will in question
had been duly executed as per requirements under the Indian Succession
Act, the examination of other attesting witness in court may be dispensed
with. However, if one attesting witness fails to prove the due execution
of the will to the satisfaction of the court, then the other attesting
witness would be required to supplement the evidence.
- At
present, it is compulsory to obtain probate of a will that has been
executed in cities like Mumbai, Chennai or Kolkata. It is also compulsory
to obtain probate of a will which sets out inheritance of properties that
are situated in Mumbai, Chennai or Kolkata – irrespective of the place of
execution of the will.
Letters of administration:
In the event that the deceased
has not named any person to be executor of his/her will, a legatee under the
will may be admitted to prove the will instead. In such a case, the court would
grant letters of administration to the executor. There are also instances where
even though the deceased has named an executor in his will, the executor
refuses to act or is legally incapable to act. In such cases, too a legatee may
be admitted to prove the will, and letters of administration may be granted to
him.
Where a deceased has named an
executor in his will, but the executor dies before having administered the
estate of the deceased, letters of administration may be granted to the legatee
in such cases too.
