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


1 Privileged Will:-The wills which could be made by any Solider,Airman or Mariner engaged in actual warfare are called privileged wills. To make privilege will age of such persons should be above 18 years. Such will could even be oral. However, at the expiration of one month such oral will
shall be null in case testator survives.
(Ref: Sections 65 and 66 of the Act)
In the case of Ratnammal Vs. Thilaimal, AIR 1957 AP 336,337, in para 6 it was held this provision is not applicable to exempted category. It means Hindu can not make privileged Will.
2 .Unprivileged will:-Unprivileged wills can be executed in a manner given in Section-63 of the Indian Succession Act. The testator has to sign or affix his mark to the will or it can be signed by some other person in his presence and by his direction. The signature or the mark of the testator or the signature of the person signing for him, shall be so placed that it shall 2 appear that it was intended thereby to give effect to the writing as a will. The will is required to be attested by two or more witnesses, each of whom has seen the testator to sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person, but it shall not necessary that
more than one witness be present at the same time, and no particular form of attestation shall be necessary.
3. Will under Muslim law:-A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death. A will may be in the form of oral or written if the will is in writing need not be signed, if signed need not be attested. A will can be made by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is capable of holding property except unborn persons and heirs. 
A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs give consent or only heir is husband or wife.
4. Holographic Will:- 
   Means will which is wholly in the handwriting of the testator. A greater degree of presumption arises in the case of `holograph Wills'.
1 Will is a translation of the Latin word “voluntas” which was a term 
used in the text of Roman Law to express the intention of a testator. Thus, the will is an instrument by which a person makes disposition of his property to take effect after his death, and which is, in its own nature, ambulatory and revocable during his life.
2 Indian Succession Act, 1925 is the principal legislative measure in India dealing with the substantive law of testamentary succession in regard to persons other than Muslim and intestate succession in regard to persons other than Hindus and Muslims. ( Ref: para 1.1 law commission report
Section 3 empowers the State Government to exempt any race, sect, tribe from applicability of the Act.
3. Wills in Hindu & Muslim law: In Hindu law, there was,
originally, no concept of will. No synonym for the word “will” was to be found in the whole of Sanskrit literature. But the institution of will in all its aspect (as applicable to Hindus) was brought into being by judicial decision during British period. A Hindu will, executed before 1870, could be in writing or oral,
and no attestation or other formalities were required. Even signature was not necessary in law. In 1870, the Hindu Wills Act introduced various formalities for the execution of will. Amongst Muslims, tradition of making Wills goes to at least as early as the prophet. The Indian Succession Act does not apply to
wills executed by Muslims.
(Ref: paras 2.15, 2.16 & 2.16 of law commission No.110 report)
4 Indian Succession Act, 1925 consolidates following 12 earlier
Central Acts passed between 1841 and 1903.
1. The Succession (Property Protection) Act, 1841
2. The India Succession Act, 1865
3. The Parsi Intestate Succession Act, 1865
4. The Hindu Wills Act, 1870
5. The Married Women's Property Act, 1874
6.Probate and Administration Act, 1881
7. The District Delegates Act, 1881
8.Probate and Administration Act, 1889
9. The Succession Certificate Act, 1889
10.Probate and Administration Act, 1890
11. The Native Christian Administration of
Estate Act, 1901
12.Probate and Administration Act, 1903
5. The Act has been divided into eleven parts and these parts have been subdivided into Chapters. Part-IX relates to probate, letter of administration and administration of assets of the deceased and Part-X regulates the grant of succession certificate.
6 .The Indian Succession Act broadly divides succession into
intestate and testamentary succession. While the provisions of the Act relating to intestate succession are applicable to particular classes or communities of people leaving the personal law, statutory and otherwise of the two major communities in India, namely Hindus and Muslims,untouched. The provisions of the Act dealing with testamentary succession are generally made applicable to everyone in India except those exempted
under the Act and a few others.
2(Ref: law commission report no. 247)
7 Indian Succession Act in Section-2 (h) defines will as, “the legal
declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. Section 59 makes it legal for every person of sound mind not being minor to dispose of his property by will. One who makes will is “testator”. Legatee is beneficiary mentioned in the
Will. Executor is the person, testator appoints to execute his last Will, who represents the estate of the deceased. When, there is no executor, administrator is appointed by the competent authority to administer the estate of the deceased. Instruments made by the testator to supplement the will is codicil. Propounder of will, means one who offers or proposes a document as being authentic or valid.
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