“Where
there is a Will, there is a Relative,
Where there is a Relative,
there is a Dispute,
And where there is a
Dispute, there is a Probate“
The above quote is the
reality of several succession/inheritance cases. A probate means the copy of the
will certified by the seal of a Court. Probate of a will establishes the
authenticity and finality of a will and validates all the acts of the executors.
It conclusively proves the validity of the will and after a probate has been
granted, no claim can be raised about the genuineness or otherwise of the will.
A probate is different from a succession certificate. A succession certificate
is issued by a Court when a person dies intestate, i.e., without making a
will. Thus, a probate is granted by a Court only when a will is in place, while
a succession certificate is granted only if a will has not been made.
II.
Necessity :
According to the Indian
Succession Act, no right as an executor or a legatee can be established in any
Court unless a Court has granted a probate of the will under which the right is
claimed. This provision applies to all Christians and to those Hindus, Sikhs,
Jains and Buddhists who are/whose immovable properties are situated, within the
territory of West Bengal or the Presidency Towns of Madras and Bombay. Thus, for
Hindus, Sikhs, Jains and Buddhists who are/whose immovable properties are
situated outside the territories of West Bengal or the Presidency Towns of
Madras and Bombay, a probate is not required. It also applies to Parsis who
are/whose immovable properties are situated within limits of the High Courts of
Calcutta, Madras and Bombay. However, absence of a probate does not debar
the executor from dealing with the estate.
III.
Procedure :
3.1 To obtain a probate, an
application needs to be made to the relevant Court along with the will. The
executor has to disclose the names and addresses of the heirs of the deceased.
Once the Court receives the application for a probate, it would invite
objections, if any, from the relatives of the deceased.
3.2 The Court would also
place a public notice in a newspaper for public comments. The petitioner would
also have to satisfy the Court about the proof of death of the testator and the
proof of the will. Proof of death could be in the form of a death certificate.
However, in the case of a person who is missing or has disappeared, it may
become difficult to prove the death. U/s.108 of the Indian Evidence Act, 1872,
any person who is unheard of or missing for a period of seven years by those who
would have naturally heard of him if he had been alive, is presumed to be dead
unless otherwise proved.
3.3 On being satisfied that
the will is indeed genuine, the Court would grant a probate (a specimen of the
probate is given in the Act) under its seal. The probate would be granted in
favour of the executor/s named under the will. The Supreme Court has held in the
cases of Lalitaben Jayantilal Popat v. Pragnaben J. Kataria, (2008) 15
SCC 365 and Syed Askari Hadi Ali v. State, (2009) 5 SCC 528, that while
granting a probate, the Court must not only consider the genuineness of the
will, but also the explanation given by the parties to all suspicious
circumstances surrounding thereto along with proof in support of the same. The
onus of proving the will is on the propounder. The propounder has to prove the
legality of the execution and genuineness of the said will by proving absence of
suspicious circumstances surrounding the will and also by proving the
testamentary capacity and the signature of the testator. When there are
suspicious circumstances the onus is also on the propounder to explain them to
the Court’s satisfaction and only when such onus is discharged, would the Court
accept the will — K. Laxman v T. Padmini, (2009) 1 SCC 354.
It may be noted that a mere
fact that a nomination has been made would have no impact on the probate since
the nominee is only a stop-gap arrangement till such time as the actual legal
heir is given the estate of the deceased.
IV.
Opposition :
If any relative, heir of the
deceased or other person feels aggrieved by the grant of a probate, then he must
file a caveat before the Court opposing the will. Once a caveat has been filed,
the Courts would hear the aggrieved party and he would have to prove that he
would have a share in the estate of the testator if he had died intestate.
V.
Why does one need a probate ?
5.1 One of the
questions which almost always arises in the case of a will, is ‘why is the
probate required ?’ A probate is a certificate from the High Court certifying
the genuineness and finality of the will. It is the final word on whether the
will is genuine or it has been obtained by fraud, coercion, etc.
5.2 Some of the reasons why
a probate is required are as follows :
(a) It is necessary to
prove the legal right of a legatee under a will in a Court.
(b) Some listed/limited
companies insist on a probate for transmission of shares.
© Similarly, some
co-operative housing societies insist on a probate for transmission of a flat.
(d) The Registrar of
Sub-Assurances would insist on a probate usually for registration of immovable
properties.
However, it would not be correct to say that no transfer can take place without a probate. There are several companies, societies, etc., which do transfer shares, flats, etc., even in the absence of a probate. They may, as a precaution, insist upon a release deed from the other heirs in favour of the legatee who is the transferee. Sometimes, the company/society also asks for an indemnity from the legatee in its favour against any possible claims/law suits from the other heirs of the deceased.
VI. Special factors:
Some of the rules in respect of obtaining a probate are as under:
a) For obtaining a probate, the applicable court fee stamp would be payable as per the rates prescribed in different states. For instance, for obtaining a probate in the city of Mumbai, the application has to be made to the Bombay High Court and the court fee rates prescribed under the Bombay Court-Fees Act, 1959 would apply which are as follows:
b) A probate cannot be granted to a minor or a person of unsound mind.
c) If there are more than one executors, then the probate can be granted to all of them simultaneously or at different times.
d) If a will is lost since the testator’s death or it has been destroyed by accident and not due to any act of the testator and a copy of the will has been preserved, then a probate may be granted on the basis of such a copy until the original or an authenticated copy has been produced. If a copy of the will has not been made or a draft has not been preserved, then a probate can be granted of its contents or of its substance, if the same can be proved by evidence.
e) A probate petition requires the following contents:
i) A copy of the will or the contents of the will in case the will has been lost, mislaid, destroyed, etc.
ii) The time of the testator’s death — a proof of death would be helpful.
iii) A statement that the will is the last will and testament of the deceased and that it was duly executed.
iv) The amount of assets which may come to the petitioner and the value for the purposes of computing the court fees.
v) A statement that the petitioner is the executor of the will.
vi) That the deceased had a fixed place of residence or some property within the jurisdiction of the judge where the application is moved.
vii) It must be verified by at least one of the witnesses to the will. It must be signed and verified by the petitioner and his lawyer.
VII. Succession certificate:
A succession certificate is a certificate granted by a High Court in respect of any debt due to the deceased or securities owned by him. In case the deceased died living behind a will, which only empowered the beneficiaries to collect his debts and securities, then the courts would grant a succession certificate instead of a probate. It merely empowers the grantee to collect the debts owed to the deceased.
VIII. Chartered Accountant/Auditor’s Duty:
Normally, a CA in his capacity as an Auditor is not directly involved with wills and succession issues. Nevertheless, a CA can provide a lot of value added services to his clients if he is aware of the law in this respect. He can be of great assistance to his clients in cases of succession planning and estate planning. It is an area where he can assist his client and avoid unnecessary litigation amongst heirs. CAs in today’s environment, in addition to being business and financial consultants, are also family advisors.
