The property may be ancestral or self-acquired property may devolve in two ways i.e., a) By testamentary succession i.e., the deceased died by executing will bequeathing his properties to specific heirs and b) By intestate succession when the deceased died intestate without executing Will or any deeds. The transmission could either be by way of a will or by the operation of law. The Indian Succession Act, 1925, is the principal legislative measure in India dealing with the substantive law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindus and Muslims. In this article, we shall study about the executor of the will in the case of testamentary succession. In this article, we shall study an executor of a will under the Indian succession act, 1925. In this article, we shall study about a probate under the Indian Succession act, 1925.
Testamentary Succession:
Testamentary succession or disposition by wills refers to a case when the deceased leaves behind a will and the devolution of property take place as per his wishes expressed in his last will. A will is the expression by a person of wishes which he intends to take effect only at his death. In order to make a valid will, a testator must have a testamentary intention to which he gives deliberate expression to take effect only at his death. “Codicil” means an instrument made in relation to a will, which explains, alters or adds to what is contained in the will and which is deemed to form part of the will. Codicil is also called supplementary will.
Under Section 219 of the Indian Succession Act, 1925, if the deceased has died intestate and was not a person belonging to any of the classes referred to in Section 218 (i.e, Hindu, Mohammedan, Buddhist, Sikh or Jain or an exempted person), those who are connected with him either by marriage or by consanguinity are entitled to obtain Letters of Administration of his estate and effects in the order and according to the rules framed in this section.
Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims, etc. are not bound to apply for letters of administration (Probate). It is optional and not mandatory for these persons to seek probate of the Will.
The Probate:
According to Section 2(f) of the Indian succession act, 1925, 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. Thus, a probate is a document issued under the seal of the Court and under the signature of a proper official (such as a District Judge or Registrar of a Court), certifying that the original will was proved on a certain date, and to this is attached a certified copy of the will of which probate has been granted. When a probate is applied for, and the will is proved, the original copy is retained by the court, which provides the executor with a certificate proving that it is genuine (the probate) and a copy of the will. This grant and the copy of the will both together form the probate However, a mere copy of the grant, without a copy of the will annexed, is not a probate.
The term executor is defined in S. 2(c) of the Indian Succession Act, 1925, as a person to whom the execution of last will of a deceased is confided by the testator. The executor should possess all the competency required by the testator himself. The executor derives his powers from the Will. The appointment of the executor may be expressed or implied. The executor is appointed by the testator himself during the making of the Will and the will contains an express provision for the appointment of one or more executors. It may also be noted that. under S. 211 of the Act, the executor or administrator of a deceased person is his legal representative for all purposes. It is the duty of the executor to get probate granted from the Court. A will that has not been probated has no legal validity in the eyes of law. Only a will that has been probated has a binding force.
In Balan Alias Balendu Jayant Sawant v. I.K. Agencies Pvt. Ltd., 19 March, 2010 case, the Bombay High Court observed that according to the law of testamentary succession, no matter what property is being bequeathed in a will, it does not have to be determined who owns it. This court’s only job is to determine if the deceased was of sound mind and capable of making a will and to ensure that the will is in line with the law. It only matters whether or not a person’s will is their final testamentary instrument, whether or not they were in a sound state of mind when they created it, and whether or not the will was properly executed and witnessed as required by law.
A probate cannot be granted to:
According to section 223of the Indian Succession Act, 1925, Probate cannot be granted to any person who is a minor or is of unsound mind. Neither it can be granted to an association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by notification in the Official Gazette by the State Government in this behalf.
Consequences of Granting of Probate:
- A probate has effect over all the property of the deceased throughout the state in which it is granted. When probate is granted by a High Court, it has effect over all the property of the deceased in the whole country.
- The grant of a probate is conclusive evidence that the testator had a legal capacity to make a will.
- It is also conclusive evidence as to the factum and validity of the will
- Probate is also conclusive evidence of the genuineness of the will and the appointment of the executor or executors.
- However, a probate is not conclusive evidence of the domicile of the deceased even though this question may have arisen in the probate proceedings.
- Once a probate is granted, no suit can be filed for a declaration that the testator was not of sound mind
- A probate is conclusive as to the representative title of the executor against the debtors of the deceased and provides a complete indemnity to such debtors.
Notes:
- A petition has to be filed before the Principal Court of Original Jurisdiction or before the Hon’ble High Court under Section 374 of the Indian Succession Act. The Court in question will issue the court notices at the initial stage and a paper publication will be caused besides a Gazette publication as well. In case such a petition is contested, it will be converted into a regular suit and upon contest the same will be disposed of, by delivering the judgment and decree, in accordance with law.
- According to Section 227 of the Act, when probate of a Will is granted, it authenticates the validity of the will from the death of the testator and it also validates all intermediate acts of the Executor.
- According to Section 213 of the Act, no right as executor or legatee can be established in any Court of law unless and until a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed. This section applies only in the case of wills made by Hindus (includes, Buddhists, Sikhs or Jains).
- According to Section 222 of the Act, a probate shall only be granted to an executor appointed by the will. Such appointment may be express or implied. A probate to a minor or a person of unsound mind or to any association of individuals unless and until it is a company and it satisfies the rules published in official gazette by the State Government.
- According to Section 224 of the Act, when several executors are appointed by the will, probate may be granted to all of them simultaneously or at different times Thus. if A and B are executors of a will, probate may be granted to A and B at the same time, or to A first, and then to B, or to B first, and then to A.
- According to Section 225 of the Act, if a probate of a will is granted, and thereafter, a codicil is discovered, a separate probate of the codicil may be granted to the executor, if the codicil does not repeal the appointment of the executor made by the will. If. however, a different executor is appointed by the codicil, the probate of the will (granted earlier) is to be revoked, and a new probate is to be granted of the will and codicil together.
Conclusion:
According to Section 2 of the Indian Succession Act, 1925, Probate means “the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator”. It is nothing but a decree passed by a competent court declaring the legality/correctness and genuineness of the Will of the deceased. – Probate of a Will when granted, establishes the genuineness of Will from the death of the testator and renders valid all intermediate acts of the Executor as such. There is no limitation for grant of letters of administration or probate. Where the estate is in the possession of administrator there is no question of the Probate Court delivering the possession to him but the probate will be decisive only with regard to the genuineness of the Will propounded and the right of the executor to represent the estate. If the Will which is required to be probated, under the Act, if not probated, has no legal sanctity and binding force.
Test Your Understanding:
- What is meant by testamentary succession?
- What is meant by a ‘Probate’?
- What are the consequences of the probate?
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