Pro­bate is an of­fi­cial proof

HT Estates - - FRONT PAGE - The au­thor is Se­nior Part­ner, ZEUS Law, a cor­po­rate com­mer­cial law firm. One of its ar­eas of spe­cial­iza­tion is real es­tate ad­vi­sory and lit­i­ga­tion prac­tice. If you have any queries, email us at ht­es­tates@hin­dus­tan­ or

When the per­son draws his Will his in­ten­tion is to pro­vide clear in­struc­tions to the ex­ecu­tor about the man­ner of dis­tri­bu­tion of his es­tate/ as­sets/ prop­er­ties af­ter his demise to his ben­e­fi­cia­ries. In cer­tain states, the ex­ecu­tor of the Will nec­es­sar­ily needto ap­ply for and ob­tain a grant of pro­bate by the court of law in or­der to le­gal­ize the Wil while in other states it is op­tional.

Pro­bate as per The In­dian Suc­ces­sion Act, 1925 (“Act”), is the copy of Will cer­ti­fied un­der the seal of the court of com­pe­tent ju­ris­dic­tion with the grant of ad­min­is­tra­tion to the es­tate of the tes­ta­tor (one who writes the Will).

In other words, it is an of­fi­cial proof that adds le­gal char­ac­ter to the Will.

A pro­bate is com­pletely dif­fer­ent from the let­ter of ad­min­is­tra­tion which is granted when the Will doesn’t name an ex­ecu­tor or in cases when no Will has been left be­hind by the de­ceased.

In states where ob­tain­ing a grant of pro­bate on the Will is op­tional, as soon as the tes­ta­tor dies and Will comes into light, it op­er­ates as a valu­able in­stru­ment in favour of the ben­e­fi­ciary( ies) i. e. the per­son( s) in whose favour prop­erty is de­volved by­suchWill. In gen­eral par­lance, such ben­e­fi­ciary(ies) do not ap­proach the court to ob­tain a pro­bate but start en­joy­ing the prop­erty as suc­ces­sor un­der the Will. Now, if such Will be de­clared by the court as null and void, right of such ben­e­fi­ciary(ies) in the prop­erty or prop­er­ties un­der the Will, will be ex­tin­guished.

There­fore, in or­der to avoid such sit­u­a­tions, gen­er­ally ben­e­fi­cia­ries ap­ply for the grant of pro­bate of the Will by the court of com­pe­tent ju­ris­dic­tion.

The District Judge has the power and au­thor­ity to grant pro­bate in all cases within his district.

The pro­bate can only be granted only to an ex­ecu­tor ap­pointed un­der a Will. It is also per­ti­nent to men­tion here that an ex­ecu­tor can­not be com­pelled to ob­tain a pro­bate of a Will. The right of an ex­ecu­tor to ap­ply for pro­bate of the Will is per­sonal to the ex­ecu­tor.

He may re­nounce his right to ob­tain pro­bate, viz. by re­nounc­ing his ex­ecu­tor­ship. Fur­ther, sev­eral ex­ecu­tors maybe ap­pointed un­der a Will. In such a sit­u­a­tion, the pro­bate may be granted to all of them si­mul­ta­ne­ously or at dif­fer­ent times.

To il­lus­trate with an ex­am­ple, if A and B are ex­ecu­tors of the Will then the pro­bate can be granted to both of them at the same­time. It may­al­sobe­granted at dif­fer­ent times, first to A and then to B or vice-versa.

The pur­pose to grant the pro­bate of Will is to es­tab­lish the Will from the death of tes­ta­tor and also to ren­der all the in­ter­me­di­ate acts of the ex­ecu­tor valid. It has ef­fect over all the prop­erty and es­tate of the de­ceased whether mov­able or im­mov­able.

In case a cod­i­cil i.e. an ad­di­tion or sup­ple­ment to any part of the Will, is dis­cov­ered af­ter the grant of pro­bate, then a sep­a­rate pro­bate of such cod­i­cil may be granted to the ex­ecu­tor, if the ex­ecu­tor re­mains the same as ap­pointed un­der the Will.

How­ever, if dif­fer­ent ex­ecu­tors are ap­pointed by the cod­i­cil, the pro­bate of the Will shall be re­voked and a new pro­bate will be granted of the Will and cod­i­cil to­gether.

The grant of pro­bate can be re­voked or an­nulled if the pro­ceed­ings to ob­tain the grant was de­fec­tive or the grant was ob­tained fraud­u­lently. A judg­ment ren­dered in a pro­bate pro­ceed­ing would not be de­ter­mi­na­tive of the ques­tion of ti­tle if the pro­bate has been ob­tained by fraud of ma­te­rial fact and the same can be sub­ject-mat­ter of re­vo­ca­tion of grant. To il­lus­trate with an ex­am­ple, the pro­bate granted may be re­voked if the ex­is­tence of other heirs was con­cealed while mak­ing an ap­pli­ca­tion of pro­bate.To sum up, the pro­bate granted by the com­pe­tent court is con­clu­sive on the val­i­da­tion of the Will un­less re­voked in ac­cor­dance with law. If you take home loan for pur­chase or con­struc­tion of a house, the cap­i­tal re­pay­ment and in­ter­est paid on the home loan qual­ify for de­duc­tion un­der sep­a­rate in­come tax sec­tions. While prin­ci­pal re­pay­ment qual­i­fies for de­duc­tion un­der sec­tion 80C of the In­come-tax Act, 1961 and has an over­all limit of Rs1.5 lakh a year, the in­ter­est pay­ment on home loan qual­i­fies for de­duc­tion un­der sec­tion 24(b) of the Act, with an over­all limit of Rs2 lakh a year. There is an ad­di­tional de­duc­tion of Rs50,000 for in­ter­est pay­ment on home loans un­der sec­tion 80EE for the first­time home­buy­ers.


Newspapers in English

Newspapers from India

© PressReader. All rights reserved.