How is the authenticity of a will verified?
Probate and letters of administration are two vital legal documents that enable speedy and effective settlement of wills
Wh at a r e t h e l e g a l requirements for carrying out the wishes of a testator (ie, person deceased who leaves behind a will) after his or her demise? The first important requirement 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 s at i s f i e d about due 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 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.
In order to ensure smooth and speedy administration of the estate after one’s demise, one must clearly set out the scheme of inheritance and name the beneficiaries explicitly under the will.
The author is senior partner at Zeus Law, a corporate commercial law firm. One of its areas of specialisation is real estate transactional and litigation work. If you have any queries, email us at htestates@ hindustantimes. com or ht@ zeus.firm.in