Is Probate Compulsory?

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A probate for a will is required to be obtained only under circumstances mentioned in Section 213 of Indian Succession Act, 1925. Section 213 is reproduced for ready reference:-

“Section 213 : Right as executor or legatee when established –
(1) No right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
[(2) This section shall not apply in the case of wills made by Mahommedans and shall only apply in the case of wills made by any Hindu Buddhist, Sikh or Jaina where such wills are of the classes specified in ‘Clauses (a) and (b) of Section 57.’]
The above sub-s (2) is substituted, by the Indian Succession, (Amendment) Act 16 of 1962 dated 30 March 1962, by the following :

(2) This section shall not apply in the case of wills made by Mahommedans, and shall only apply –
(i) in the case of wills made by any Hindu, Buddhist, Sikh, or Jaina where such will are of the classes specified in cll (a) and (b) of s 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act 1962 where such will are made within the local limits of the ordinary civil jurisdiction of the High Courts of Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immoveable property situate within those limits.”

Thus it is very clear from the above provision that a probate is required only under following circumstances :

(i) All wills of Hindus etc made on and after 1 September 1870, within the provinces of Bengal, Bihar, Orissa and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay.

(ii) All such wills made outside the territories mentioned in (i) above relating to immovable properties situate within the said territories must also be proved and probate thereof obtained, before any right as executor or legatee can be established.

(iii) Wills other than those in categories (i) and (ii) above made before 1 January 1927, i. e to say, such wills made outside the territories mentioned in (i) above, relating to movable property situate inside or outside the said territories or immovable property situate outside the said territories are not required to be proved or probated [see s 213 (2), infra].

(vi) Where a will is not executed within the territories mentioned in para (i) or the will does not relate to property situate within the territories mentioned in para (ii), sub-s (1) of s 213 is not attracted.

In your case, since the will is executed in Gandhinagar and moveable property is involved such a will does not attract provisions of section 213 of Indian Succession Act, 1925. Therefore such a will is not required to be probated.

2. Since no probate is necessary of the will in the instant case, the will is admissible in evidence even though it is not probated in accordance with Section 213 of Indian Succession Act, 1925.

As far as the second query is concerned, you have not stated who the person acting on the instructions contained in the Will is. If he did not know the testator, he should, in order to protect himself, ask the heirs to swear an affidavit to the effect that:
i) this was the last will made by the deceased;
ii) that the signature is that of the testator; and
iii) the testator was of sound mind when making the will.

If there is any dispute among the heirs about the will e.g. one heir insists that the will is genuine and is the last will of the testator and the other heir or heirs insist that it is not, then the person carrying out the instructions should insist that the will be proved in Court.

admin

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22 thoughts on “Is Probate Compulsory?

  1. I filed application u/s 276, in regard to movable property in Lucknow court. Opposite side has challenged the Will. Can the court dismiss my application? I want court to decide the genuineness of the Will and grant probate. Refer your answer below:
    a probate is required only under following circumstances :

    (i) All wills of Hindus etc made on and after 1 September 1870, within the provinces of Bengal, Bihar, Orissa and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay.

    (ii) All such wills made outside the territories mentioned in (i) above relating to immovable properties situate within the said territories must also be proved and probate thereof obtained, before any right as executor or legatee can be established.

    (iii) Wills other than those in categories (i) and (ii) above made before 1 January 1927, i. e to say, such wills made outside the territories mentioned in (i) above, relating to movable property situate inside or outside the said territories or immovable property situate outside the said territories are not required to be proved or probated [see s 213 (2), infra].

    (vi) Where a will is not executed within the territories mentioned in para (i) or the will does not relate to property situate within the territories mentioned in para (ii), sub-s (1) of s 213 is not attracted.

    In your case, since the will is executed in Gandhinagar and moveable property is involved such a will does not attract provisions of section 213 of Indian Succession Act, 1925. Therefore such a will is not required to be probated.

    2. Since no probate is necessary of the will in the instant case, the will is admissible in evidence even though it is not probated in accordance with Section 213 of Indian Succession Act, 1925

    Reply
  2. my mother in law died in delhi and she made will of her property in delhi . property is in shilong
    pls tell where we should apply for probate of the will

    Reply
  3. My mother in law died in delhi bt property is in shilong will made in delhi where we we can apply fr probate?

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  4. Is a foreign court’s Probate valid in India for properties outside India?

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  5. we have our grandmother’s house, she made a will before she died, the house is unregistered, now they are denying registration, is there any alternative for probate, as it is a very expensive method and the charge is 1 lakh rupees.

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  6. Dear sir , my grandfather has left a unregistered will in which he has left a property in my and my brothers name now the exicuter of the will has been creating some probelms and is been asking money from us , now we want to sell the property my grandfather has left for me plz advice us ..

    Reply
  7. my uncle made a will in my favour in 2009. my area was included in the corporation limits in 2011. should my uncle’s will be probated?

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  8. Is the probation of the will executed by the christians is mandatory?

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  9. My Grandfather has made a registered will in Utter Pradesh for property in Utter Pradesh. Is the probation compulsary for the will. when applying for a loan in bank against that property bank is asking for probation of will by court.
    Please help and advise

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  10. my father died 1997 , will made in 1989  will is registered in pune sub resistor office .
    undivided land  at alibag ( dist raigad )  Is it necessary to  get probate certificate &  where we we can apply fr probate?

    Reply
  11. my father made a gave me a flat (In Mumbai) as a gift before he died he made a iccha mrutpatra. for that house.he does not mention any another property he died in june 2012. then I submitt my documents in society. The legal advisor of society said to make a probate. so, with help of my advocate I made a probate now legal advisore refuse to executive for sign the paper. (my father appoint as a executive . he is secretary of society)and I have a four sister they also challanging me. now what to do.I cant understand I live in Navi Mumbai my father died in navi mumbai. so our advocate said that put up the paper in thana cout. so sir, is it possible. ( There is a request dont publish this mail otherwise i am in trouble)

    Reply
  12. I would like to know whether there is any stipulated time limit for probating a will is applicable to the Christian undivided property in kolkata?

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  13. Sir,my father made a unregistered will at HYDERABAD in respect of his half share in a flat (jointly owned with my wife) located at MUMBAI ,in favor of my wife.He passed away in DELHI.
    1. Is the probate is required despite the fact that all his legal heirs have confirmed in writing ( duly notorised) about the said will.
    2.If probate is required which court will have jurisdiction viz

    HYDERABAD where the will was executed and where 2 out of 5 legal heirs resides.

    DELHI where he padded away OR

    MUMBAI where the immovable property (FLAT ) is situated.

    Reply
    1. Probate is not necessary. Mumbai will have jurisdiction.

      Reply
  14. My mother died in the year 2005 making a will in my favor. We are three brother and I am eldest son of my parents. I am living in Ahmedabad. The will of my mother is in Gujarati language and it is registered with Sub-Registar office in Ahmedabad. The will is made of Rs.100/-stamp and attested by two witnesses along with my advocate.

    Now there is only Rs. 11000/- is left in my mother pension bank account. I have produced the copy of will with the Union Bank of India, Bapunagar Branch and now the bank insist that I have to probate the will and than only I can get the amount of Rs. 11000/- on the strength of will of my mother.

    Is it necessary to probate the will? My mother had not made nomination with the bank and therefore I have produced the copy of will with the original will.

    Please give me appropriate guidance in the matter and obliged.

    Reply
    1. Yes, Probate is necessary in your case.

      Reply
  15. MY FATHER HAS LEFT A WILL WHEN HE DIED WHICH WAS NOT PROBATED . THE WILL WAS MADE IN 1993 SAYING THE EQUAL RIGHT OF HIS PROPERTY TO HIS CHILDREN. BUT ONE OF THE CHILDREN DIED A FEW YEARS BEFORE AND HIS CHILDREN DUPED MY FATHERS PROPERTY AND ARE THEIR CUSTODY. CAN ANYONE ADVISE WHETHER I CAN SUBMIT MY FATHER’S WILL TO THE COURT FOR CLAIMING THE PROPERTY.

    Reply
    1. Definitely YES !
      It may be lengthy process depending on where the immovable prop. situates…..but you have to file for Probate (along with the Original WILL, of course.) first making parties to the case(all of your brothers and sisters and the children of the demised-brother ….in that case pl. discuss the matter with a lawyer for the details. All the BEST.

      Reply
  16. Need more clarification on will, kindly provide contact no.

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  17. Whether probate is required for Christian.

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  18. Dear Sir
    i have property situated at Ahmedabad city in Gujarat State, my mother and my bhabhi having a court matter about the said property, in 2009 they come on compromised and divide the said property, the said property is in my mother’s part, after that my mother was made a notaraised will in the my name,i want to transfer the property on my name on the basis of will and court compromised copy (the compromised copy is clearly stated the my bhabhi had left her or her any assinees right of possession on the said property), but society chairman demand for probate for said will so pl. guide me in the same.

    Reply
  19. I need to know the following details
    My husband late Narasimhan Kannan made a will nearly 2 months back . We have 2 daughters & they are in the USA ( not citizens yet but green card holders ) My eldest daughter was to come with the family for 3 weeks in Jan 2 no week so we were busy planning their holidays . His birthday fell on the 28 th of Dec so we went to Chennai to visit all the temples . The next day we both attended a marriage . The same night he had a cardiac arrest & died on the 9 th Jan 2017
    Since we were so busy we did not probate the will . Everything we have is in joint name .
    My question is is the same will valid ?
    Can I probate it now ? He in his will mentioned that everything goes to my wife who will decide on the properties . In that case do I make a will & mention both my daughters name in all our properties .
    I need an answer for the above
    Please advise me as to what to do
    Thanks & regards
    Gayathry Kannan
    [email protected]

    Reply

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