Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

HOW TO PROVE WILL IN THE COURT OF LAW.

HOW TO PROVE WILL IN THE COURT OF LAW.

@1                         A Will must be construed objectively and conclusion must be
deducted by a rational process of reasoning. Intention of the testator to be gathered from the recitals in the Will, surrounding circumstances disclosed from the Will, underlying scheme of the disposition made under the Will as also the reasons for making bequest therein. The intention of the testator should be given primary importance and the Court should construe the words in the background of the intended meaning which the testator himself described to a scribe to the words used.

@2 (Refs: Gnanambal Ammal Vs. T. Raju Aiyar, AIR 1951 SC 103, Bhura Vs.
Kashi Ram (1994) 2 SCC 111, Navneet Lal Vs. Gokul and Ors, AIR 1976 SC
794)
13 It is well settled that, mode of proving the Will does not differ from that, proving any other documents except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of Will, proof of testamentary capacity of and proof of the signature of the testator, as required by law, need to sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. Proof in either case can not be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same.
@3 (Refs: H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others, AIR 1959 SC 443, Smt. Jaswant Kaur Vs. Smt Amrit Kaur, AIR 1977 SC 74, Bharpur Singh and Others Vs. Shamsher Singh, AIR 2009 SC 1766)
14 The provisions regarding testamentary succession in Part-VI of the Indian Succession Act are applicable to all cases of testamentary succession, except saved under Section 58(1) of the said Act, where one of the exception is Wills of Mohammedan.
15 How to prove execution of document required by law to be attested is given in Section-68 of the Indian Evidence Act. The proof of signature and handwriting of a person alleged to have signed or written document produced can be proved in a manner given in Section-67 of the said Act. Unless one attesting witness has been called for the purpose of proving the execution of will, it cannot be used as evidence. Provided such an attesting
witness be alive, can be subject to the process of court and be capable of
giving evidence.
16 When the attesting witness cannot be found, then as provided in Section-69 of the Indian Succession Act, it must be proved that attestation of one attesting witness at least in his handwriting and that the signature of the
person executing the document is in the handwriting of that person. However, the execution of will can be proved against the party to such Will without examining attesting witness in case such person admits execution. 
@4     ,
Section-71  of the Indian Evidence Act allows to prove the execution of Will by other evidence where the attesting witness denies or does not recollect the
execution of the document.
17 In the case of Jankinarayan Bhoir V/s. Narayan Namdeo Kadam,
AIR 2003 SC 761, one attesting witness and scribe were examined.
Attesting witness has not supported the execution of will deed. However, the
scribe deposed regarding the execution of the will deed. The trial court held
that the execution of will was not proved. In the High Court it was held that
the execution of will has been proved. When the matter came up before the
Hon'ble Supreme Court, it was observed that the evidence of Sinkar, the only attesting witness, does not satisfy the mandatory requirements of Section-68 of the Evidence Act. It was held that Section-71 has no application when the one attesting witness, who has been summoned, has failed to prove the execution of the will and other attesting witness though available has not been examined. It was also held that when the document is not proved as mandatorily required under Section-68 of the Evidence Act, the provision of Section-71 of the Evidence Act, which is permissive, and enabling in certain circumstances as discussed above does not help the respondent.
18 In the case of S.R.Shrinivasa and ors. V/s. S.Padmavathamma, (2010) 5 SCC 274, the Hon'ble Supreme Court observed that "the effect of subscribing a signature on the part of the scribe cannot be identified to be of the same status as that of the attesting witnesses. The animus to attest, thus,
is not available, so far as the scribe is concerned. He is not a witness to the
will but a mere writer of the will. Presence of scribe and his signature
appearing on the document does not by itself be taken to be the proof of due
attestation”.
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19 Proof of 30 Years Old Will:-In the case of Bharpur Singh Vs. Shamsher Singh, 2009(3) SCC 687, it was held that a presumption regarding documents 30 years old does not apply to a Will. A Will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of
the Evidence Act.
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20 Registration of WILL: Indian Registration Act, 1908 does not mandate registration of Will. Registration of will is no guarantee that it was executed duly and validly as per the provisions of Section 63 of the Indian Succession Act. Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved. Presumption attached to the registered documents is only in respect of matters of the registration as per requirement of provision of Indian Registration Act and not in respect of factum of attestation within the meaning of Section 63(c) of Indian Succession Act and Section 68 of Indian Evidence Act. (Ref: Bhagat Ram Vs. Suresh, AIR 2004
SC 5)
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21 The burden of proof: The onus of proving the will is on the
propounder and in the absence of suspicious circumstances surrounding the
execution of the will, proof of testamentary capacity and the signature of the
testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. These settled principles are narrated in the cae of Shashi Kumar Banerjee & Ors vs Subodh 2
Kumar Banerjee, 1964 AIR (SC) 529 by a Constitutional Bench: P.B.
Gajendragadkar, K. Subbarao, K.N. Wanchoo, N.R. Ayyangar and J.R..
Mudholkar-JJ.
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21  Revocability: Section 62 of the Indian Succession Act deals with
the characteristic of a Will being revocable or altered anytime during the
lifetime of the testator. S. 70 of the Indian Succession Act provides the
manner in which it can be revoked. A mere intention to revoke is not an
effective revocation. The revocation of the Will should be in writing and an
express revocation clause would revoke all the prior Wills and codicils. If
there is no express clause to the effect then the former Will would become
invalid to the extent of its inconsistency with the latest Will, this is known as
an implied revocation (however it should be shown that the differences are
irreconcilable). However, if there is no inconsistency between the Wills then
they cannot be considered as two separate Wills but the two must be read
together to indicate the testamentary intention of the testator. Revocation can also be made in writing through declaring an intention to revoke and the writing must be signed by the testator and attested by two witnesses. The
deed of revocation has to be executed in the same way as the Will itself. The
Will maybe burnt or torn by the testator or by some other person in his
presence and by his direction with the intention of revoking the same. The
burning of the Will must be actual and not symbolic. The burning must
destroy the Will atleast to the extent of his entirety. Further the Will need not be torn into pieces. It would be sufficient if it is slightly torn with the intent of revocation. The Will can be revoked expressly by another Will or codicil, by implied revocation, by some writing, by burning or tearing or by destroying otherwise. Cancellation of a Will by drawing lines across it is not a mode of revocation. Under the Hindu Law the Will is not revoked by marriage or by subsequent birth.
2
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22) Alterations: Section 71 of Indian Sucssion Act is applicable to
alterations if they are made after the execution of the Will but not before it.
The said section provides that any obliteration, interlineations or any other
alteration in a Will made after its execution is inoperative unless the
alteration is accompanied by the signatures of the testator and the attesting
witnesses or it is accompanied by a memorandum signed by the testator and
by the attesting witnesses at the end of the Will or some other part referring
to the alterations. the alterations if executed as required by the section would be read as a part of the Will itself. However, if these requirements are not fulfilled then the alterations would be considered to be invalid and the
probate will be issued omitting the alterations. The signatures of the testator
and the attesting witnesses must be with regards to the alteration and must be in proximity of the alteration. Further they should be in the Will itself and not in a separate distinct paper. But if the obliteration is such that the words cannot be deciphered then the Will would be considered as destroyed to that extent.
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23) Wording of The Will: Section 74 of the Indian Succession Act
provides that a Will maybe made in any form and in any language. No technical words need to be used in making a Will but if technical words are used it is presumed that they are in used in their legal sense unless the
context indicates otherwise. Any want of technical words or accuracy in
grammar is immaterial as long as the intention is clear. Another general
principle applied is that the Will is to be so read as to lead to a testacy and not intestacy i.e if two constructions are possible then the construction that
avoids instestacy should be followed. Further there is another principle,
which says that the construction that postpones the vesting of legacy in the
property disposed should be avoided. The intention of the testator should be
decided after construing the Will as a whole and not the clauses in isolation.
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24) Execution of a Will: On the death of the testator, an executor of the Will (executor is the legal representative for all purposes of a deceased
person and all the property of a testator vests in him. Whereas a trustee becomes a legal owner of the trust and his office and the property are blended together) or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will.
If there are no objections, the court grants probate. A probate is a copy of a
Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. It is only after this that the Will comes into effect.
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25) Signature of The Testator: Section 63(a) of the Indian Succession Act provides that the testator shall sign or affix his mark. If the testator is unable to write his signature then he may execute the Will by a mark and by doing so his hand maybe guided by another person. In another words a thumb impression has been held as valid.
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26 Restrictions on A Will: Transfer to unborn persons is invalid.
Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers that description,
the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a
transfer to an unborn person, a prior interest for life has to be created in
another person and the bequest must comprise of whole of the remaining
interest of the testator.
In Girish Dutt v. Datadin AIR 1934 Oundh 35, the Will stating that
the property was to be transferred to a female descendant (who was unborn)
only if the person did not have any male descendant. The Court held that
since the transfer of property was dependent on the condition that there has
2
to be no male descendant, the transfer of interest was limited and not
absolute and thereby the transfer was void. For a transfer to a unborn person
to be held valid, absolute interest needs to be transferred and it cannot be a
limited interest.
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27 Transfer made to create perpetuity: Section 114 of the
Indian Succession Act, 1925 provides that no bequest is valid whereby the
vesting of the thing bequeathed may be delayed beyond the lifetime of one or
more persons living at the testator's death and the minority of some person
who shall be in existence at the expiration of that period, and to whom, if he
attains full age, the thing bequeathed is to belong. The rule against perpetuity provides that the property cannot be tied for an indefinite period. The property cannot be transferred in an unending way. The rule is based on the considerations of public policy since property cannot be made inalienable unless it is in the interest of the community. The rule against perpetuity invalidates any bequest which delays vesting beyond the life or lives-in-being and the minority of the donee who must be living at the close of the last life.
Hence property can be transferred to a unborn person who has to be born at the expiration of the interest created and the maximum permissible
remoteness is of 18 years i.e the age of minority in India.
28 Transfer to take effect on failure of prior Transfer: S.116 of the Indian Succession Act provides that where by reason of any of the rules contained in sections 113 and 114 and bequest in favour of a person of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same Will and intended to take effect after or upon failure of such prior bequest is also void. The principle of this section is based upon the presumed intention of the testator that the person entitled at the subsequent limitation is not intended to be benefited except at the exhaustion of the prior limitation. In Girish Dutt case one S gave property to B for life and after her death if there be any male descendants whether born as son or daughter to them absolutely. In the absence of any issue, whether male or female, living at the time of B’s death, the gifted property was to go to C. it was held that the gift in favour of C was dependent upon the failure of the prior interest in the favour of daughter and hence the gift in favour of C was also invalid. However alternative bequests are valid.

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