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
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.