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A probate caveat is a document that is filed in
court to prevent the proposed executors or administrators of a
deceased person's estate from getting permission to administer the
estate assets. A probate caveat is used to challenge a Will itself.
For example, where someone believes that the Will was forged or was
not written and approved by the deceased person.
If someone files a Probate Caveat in the wrong
circumstances, the court may order that person to pay the costs
incurred by the other party in dealing with the caveat.
A probate caveat must be filed shortly after a
deceased person's death and before probate are granted by the court.
If someone has concerns about someone's Will, it is very important
that person should seek legal advice as soon as possible after the
testator/ testatrix dies, so as to make sure that person starts the
proceedings within time and on the correct basis.
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Necessity of a Probate in certain cases: As per
the provisions of the Indian Succession Act, 1925 ("Succession
Act") the provisions of testamentary succession are applicable
to the Will if:
(i) Made by Hindu, Buddhist, Sikh or Jain on or
after the first day of September, 1870, within the territories which
at the date were subject to the Lieutenant-Governor of Bengal or
within the local limits of the ordinary original civil jurisdiction
of the High Courts of Judicature at Madras and Bombay or
(ii) Made the Will outside those territories and
limits, so far as relates to immovable property situate within those
territories or limits.
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Further, no right as an executor or legatee can be
established in any Court of Justice, unless a Court of competent
jurisdiction in India has granted Probate of the Will under which the
right is claimed. However, this provision applies only to the cases,
which are referred above. Therefore, a Probate of Will is
compulsorily required, only if the Will is made in any one of the
aforesaid two cases, otherwise, it is not compulsorily to Probate the
Will.
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Even otherwise, it would be advisable to seek
Probate of Will in case of:
(i) When there are problems with an existing Will
(ii) When the beneficiaries have predeceased the
testator and such other cases.
Probate of a Will
It is pertinent to understand the process of
obtaining the Probate of a Will. A Probate is granted by the High
Court with the court seal and a copy of the Will attached. For
seeking a Probate, the executor of the Will, as a Petitioner is
required to file the petition (after making payment of applicable
court fees depending upon the value of the assets) before the
competent court (a pecuniary jurisdiction may require a higher court
to issue a probate for high-value immovable assets) through an
advocate. Thereafter, the court usually asks the Petitioner to
establish the proof of death of the testator, as well as proof that
the Will has been validly executed by the testator, and that it is
the last Will and testament of the deceased. After receiving the
petition for a Probate, the court issues a notice to the next of kin
of the deceased to file objections, if any, to the granting of the
probate and it also directs the publication of a citation on board to
notify the general public. If there is no objection, on the other
hand, if the next of kin of the deceased files their respective
consent to the grant of Probate, then court grants the Probate,
however, if the next of kin of the deceased files their respective
objections to the grant of Probate, then the Probate Petition becomes
the testamentary suit, to enable parties to lead evidence in the
matter.
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Challenges to Wills and probate claims:
It can be difficult task to challenge a Will. In
most of the cases, courts stick stringently to Wills, since the
testator is no longer there to defend himself. However, if you have
an interest in the Will, you can challenge it, and if you are
successful in convincing the court, then the Will can be voided in
its entirety or in part. It is advisable to seek an advice from a
practicing lawyer before challenging the Will, since the law
surrounding challenges to a Will is complicated, plus, the facts of
each case are unique.
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The Will can be challenged on any of the
following grounds:
Lack of due execution: A valid Will has to be in
writing and signed by the testator in the presence of two witnesses,
who must also attest the Will. If the process is not followed to the
hilt, the Will can be challenged in the court of law.
Lack of testamentary intention: Here, the person
has to prove that the testator had no intention to make a Will,
however, this plea is rarely used, as it is difficult to prove.
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Lack of testamentary capacity: The law requires
that people above 18 years can make a Will. Adults are presumed to
have a testamentary capacity, and therefore, the Will can be
challenged on the basis of senility, dementia, insanity, or that the
testator was under the influence of a substance, or in some other way
lacked the mental capacity to make a Will. Basically, to challenge a
Will based on mental capacity, the challenger of Will must show that
the testator (the person who created the will) did not understand the
consequences of making the will at the time of its creation.
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Lack of knowledge or approval: Challenger of Will
can take the ground that the testator did not, in fact, know what was
in the Will when he signed it.
Undue influence: Challenger of Will can challenge
a Will by showing that the Will was procured by fraud, forgery, or
undue influence, i.e. lack of own free will or without adequate
attention as to the consequences of bequests so made under the Will.
Fraud or forgery: The burden of proof would be on
the challenger of the Will to establish that the Will was forged (not
signed by the testator) or was made as a result of fraudulent act.
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Claims by family: A family member can challenge a
Will on the grounds that they were not provided for adequately in the
Will.
Revocation of earlier Will: A Will, although
registered can be challenged in the court of law. The mere fact that
a Will has been registered (not mandatory under the law to register
the Will) will not, by itself, be sufficient to dispel all suspicions
regarding it. A registered Will may not be the last testament. A new
Will made, even if unregistered, if valid, will trump the registered
Will. If there are any suspicious facts, the court will scrutinize
the Will even if it is registered.
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Creating a Testamentary Trust
To create a testamentary trust in a Will, the
testator must designate a trustee and specify the beneficiaries. As
mentioned above, a testamentary trust comes into effect not until the
testator dies. Thus, the testamentary trust must be contained in the
testator last (final) Will, so the trust can be created upon the
testator death. A testamentary trust is not automatically created
upon the demise of the testator. While other types of trusts may
avoid probate, a testamentary trust must go through the probate
process. The testamentary trust will come into effect upon the
completion of this process. A trustee, chosen by the testator, will
manage the trust property or funds in the trust until the trust is
dissolved and the same is distributed to the beneficiaries.
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Grounds under which a Will after a Probate
can be contested
The Succession Act provides for certain grounds on
which a Probate of a Will may be revoked, however such revocation can
only be effected if the person challenging the Probate is able to
convince the competent court that it is necessary to revoke the
Probate 'for just cause'. Further for challenge of a probate, the law
of limitation must also be abided by, as probate operates as a 'right
in rem' granted by the competent court, operates from the date of
grant of the probate, therefore a challenge which is hopelessly
barred by limitation cannot be entertained by any court of law.
Further, an order of revocation of the Probate would operate
prospectively and such revocation does not obliterate bona fide
transactions entered into by the executor during the pendency of the
Probate.
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The challenger can challenge the Probate of Will on the
following grounds:
1. The proceedings to obtain the grant of Probate
were defective in substance; or
2. The grant of Probate was
obtained fraudulently by making a false suggestion, or suggestion, or
by concealing from the court something material to the case; or
3.
The grant of Probate was obtained by means of an untrue allegation of
a fact essential in point of law to justify the grant, though such
allegation was made in ignorance or inadvertently; or
4. The grant
of Probate has become useless and inoperative through circumstances;
or
5. The person to whom the grant of Probate was
made has willfully and without reasonable cause omitted to exhibit an
inventory or account in accordance with the provisions of Chapter VII
of this Part, or has exhibited under that Chapter an inventory or
account which is untrue in a material respect.
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Conclusion
Seeking grant of Probate of Will is a time
consuming task to be complied by the executor of the Will of the
testator, for which, the testator also has to spend time and money
towards payment of court fees depending upon value of assets
bequeathed under the Will. However, as stated above, it is compulsory
to seek grant of Probate of Will only in certain cases, whereas, it
is not compulsory to seek grant of Probate of Will in other cases.
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