What is a pro­bate of wills?

In or­der to ap­ply for pro­bate, the ap­pli­cant must be able to prove that s/he has been named as ex­ecu­tor in the will

HT Estates - - Front Page - Su­nil Tyagi

Awill is es­sen­tially a le­gal dec­la­ra­tion of one’s in­ten­tion to dis­burse prop­er­ties and wealth af­ter death. A pro­bate refers to a copy of the will, cer­ti­fied un­der the seal of a com­pe­tent court with a grant of ad­min­is­tra­tion of the es­tate to the ex­ecu­tor of the tes­ta­tor (some­one who has died leav­ing a valid will). In pro­bate pro­ceed­ings, the court deals with ques­tions re­lated to the will: if it is the last will and tes­ta­ment of the de­ceased, whether such will was duly ex­e­cuted and at­tested, and whether the tes­ta­tor was of sound mind while mak­ing the will. In a pro­bate or­der, the court cer­ti­fies the will in ques­tion to be authen­tic, with a grant of ad­min­is­tra­tion to the tes­ta­tor’s prop­er­ties.

Who can ob­tain pro­bate?

In or­der to ap­ply for pro­bate, the ap­pli­cant must be able to show that s/he has been named as ex­ecu­tor in the will, ei­ther ex­pressly or by nec­es­sary im­pli­ca­tion. A per­son who is not named as an ex­ecu­tor can­not ap­ply for pro­bate. How­ever, if the de­ceased made a will with­out ap­point­ing an ex­ecu­tor, a lega­tee may be ad­mit­ted to prove the will and let­ters of ad­min­is­tra­tion may be granted to him. There are also in­stances where even though the de­ceased has named an ex­ecu­tor in his will, the ex­ecu­tor has re­fused to act or was legally in­ca­pable to act. Here, 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 he has ad­min­is­tered all the es­tate of the de­ceased, in such cases, too, let­ters of ad­min­is­tra­tion may be granted to the lega­tee.

Grant of pro­bate

In some cases, a will is ad­mit­ted to pro­bate only in part. This may hap­pen when some parts of a will are proved as hav­ing been forged or in­serted with­out knowl­edge of the tes­ta­tor. When a will has been lost or de­stroyed and no copy is avail­able, pro­bate may be granted by the court if the con­tents of the will can be es­tab­lished by other ev­i­dence (S238). There is no statu­tory time limit pre­scribed in In­dia within which a court has to give its de­ci­sion on pro­bate pe­ti­tions. The du­ra­tion of pro­bate pro­ceed­ings vary from state to state. The time taken by the court to grant pro­bate of a will de­pends on whether the will is con­tested or un­con­tested.

Prov­ing a will

To prove the au­then­tic­ity of a will, it is not enough to prove that the sig­na­ture on the will is that of the tes­ta­tor. The will is also re­quired to be proved as prop­erly at­tested by the wit­nesses. If one at­test­ing wit­ness can prove that the will was duly ex­e­cuted as per In­dian Suc­ces­sion Act, the ex­am­i­na­tion of other at­test­ing wit­ness may be dis­pensed with. How­ever, if one at­test­ing wit­ness fails to prove the due ex­e­cu­tion of the will, then the other at­test­ing wit­ness would be re­quired to sup­ple­ment the ev­i­dence.

THINKSTOCK

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