Probate
Meaning: 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. Thus, a probate is granted by a Court only when a will is in place.
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 the 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.
Procedure: To obtain a probate, an application needs to be made to the relevant court along with the original will. The executor has to disclose the names and addresses of the heirs of the deceased. Once the Court receives the application for probate, it would invite objections, if any, from the relatives of the deceased. 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 case of a person who is missing or has disappeared, it may become difficult to prove ‘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 to be alive.
On being satisfied that the will is indeed genuine, the Court would grant probate 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 probate, the Court must not only consider the genuineness of the will but also the explanations, objections and proof given by the parties of the suspicious circumstances surrounding the execution of the ‘Will’. The onus of proving the will is on the propounder. The propounder has to prove the legality, execution and genuineness of the will by proving absence of suspicious circumstances and also proving the testamentary capacity and the signature of the testator. When suspicious circumstances are said to exist the onus is on the propounder to explain their non-existence to the court’s satisfaction and only when such onus is discharged the court would accept the will and grant probate – K. Laxman v T. Padmining (2009) 1 SCC 354. Probates can be granted after a minimum time of 7 days from the death of a person. No maximum period has been specified. A registered Will improves the chances of getting a Probate faster. In the case of a registered Will, no one can allege that the Will is fraudulent. However, registration does not mean that it is the last Will of the deceased. Hence, a challenge on the count of it not being the last Will remains open.
Opposition: If any relative, heir of the deceased, or other person feels aggrieved and objects to 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.
Why does one need a probate? One of the questions which almost always arises is “why is the probate required?” A probate is a certificate from the High Court certifying the genuineness and finality of the will. Some of the reasons why a probate is required are as follows:
• It is necessary to prove the legal right of a legatee under a will in a court.
• 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 the flat.
• 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 insist on an indemnity from the legatee in its favour against any possible claims/law suits from the other heirs of the deceased.
Effect: A probate of a Will when granted establishes the Will from the death of the testator and validates all intermediate acts carried out by the executor. It is conclusive evidence of the representative title of the executor – Harmusji v Dosabhai ILR 12 Bom 164.
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 an unsound mind.
(c) If there are more than one executors, then the probate can be granted to all of them simultane-ously 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 on its contents or of its substance, if the same can be proved by evidence.
(e) A probate petition requires the following con-tents:
• A copy of the will or the contents of the will in case the will has been lost, mislaid, destroyed, etc.
• The time of the testator’s death – proof of death.
• A statement that the will is the last will and testament of the deceased and that it was duly executed.
• Details and value of assets mentioned or covered in the Will for 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.
Letters of Administration
Meaning: When a person dies intestate, i.e., without making a will, then in order to succeed to the property of the deceased, the heir(s) would require letters of administration. If the deceased was a Hindu, Muslim, Buddhist, Sikh or Jain, then the Letters may be granted to any person who according to the Rules for Intestate Succession is entitled to succeed to the estate of the deceased. If more than one person is entitled, then the Court would be at discretion to grant the letters to one or more of them. If no person applies for such Letters, then the Court can grant them even to a creditor of the deceased. In case the intestate belonged to any community other than that specified above, say, Parsis, Christians, etc., then the Indian Succession Act, 1925 lays down a separate set of rules for granting letters of administration.
Other Situations when Letters are granted: Under one situation, letter of administration may also be granted in case there is a Will. If a Will has been probated in a Court outside the State of residence of the deceased or in a Foreign Court and a properly authenticated copy of such a Will is produced, then ‘letter of administration’ may be granted on the basis of copy of the Will and probate e.g., a Hindu’s Will is probated in London and it includes property situated in Mumbai. Letters may be granted in respect of such a probated Will.
Some of the other scenarios when letter of administration may be granted are as follows:
• In case an executor of a Will fails to take up his executorship or if a valid executor has not been appointed or if the executor dies before the testator and there is no successor executor, then instead of a probate letters of administration would be required.
• Again if no Will is produced but there is a reason to believe that there exists a Will, then letters of administration may be granted as a stop gap arrangement till such time as the Will is produced.
• When executor is absent from State in which application for probate is made.
• When minor is a sole executor.
• Where residuary legatee survives the testator but dies before the estate has been fully bequeathed.
• Where executor cannot be found and residuary legatee cannot be identified, then it is treated as if the deceased died intestate.
Effect: Letters of administration entitle the administration (i.e., the person in whose name the letters are granted) to all the rights belonging to the deceased as if he been granted those rights immediately on his death. However, they do not validate any acts of the administrator which tend to damage the estate of the deceased. They have effect over all the property and estate, whether movable or immovable of the deceased throughout the State in which they have been granted. They are conclusive as to the representative title against all debtors of the deceased and all persons holding property which belong to the deceased. They afford full indemnity to his debtors and persons delivering up such property to the holder of the letters.
Ineligibility: Letters cannot be granted to a minor, person of unsound mind, etc.
Application: An application for letters of administration should be made to the District Judge of the district in which the deceased had a fixed abode at the time of his death. The petition shall be made stating amongst other things, the time and place of death, his family members, details of assets of the deceased, right which petitioner claims etc. The application must also state that to the best of the belief of the applicant, no other application has been made for grant of letters. Letters can be granted after a minimum time of 14 days from the death of a person. No maximum time has been specified. An appeal against the District Judge’s Order lies to the High Court. However, High Court also has concurrent jurisdiction with District Judge and hence, in the cities of Mumbai, Kolkatta and Chennai, the High Court would exercise the jurisdiction.
Opposition: If any relative, heir of the deceased, other person feels aggrieved by the grant of letters, then he must file a caveat before the Court opposing the application. Once a caveat has been filed, the Courts would hear the aggrieved party and the party would have to prove that he would have a share in the estate of the intestate.
Succession Certificate
Meaning: 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. A succession certificate would not be granted if the Indian Succession Act mandatorily requires a probate or letters of administration. Thus, a succession certificate cannot be granted in respect of a flat in a co-operative society of the deceased. It can be used only for debts and securities and no other type of property. Thus, it would cover dues, shares, debentures, provident fund balances, etc.
Application: An application for a succession certificate must be made, along with the payment of requisite Court fees, to a District Judge giving inter alia the following particulars:
• Proof of death and time of death of the de-ceased
• Proof of ordinary residence of deceased
• Details of family members
• Right in which the petitioner claims
• Details of Debts and securities in respect of which the certificate is applied for.
If the Judge is satisfied, then he would grant a succession certificate. The certificate would specify the debts and securities set forth in the application and would empower the recipient of succession certificate to receive interest or dividends and/or negotiate or transfer all or any of the specified securities.
A certificate may be revoked if it was proved that the same was obtained by fraud, the application was defective, etc.
An appeal can be filed to the High Court against the District Judge’s order granting, refusing or revoking the certificate.
Effect of succession certificate: A certificate granted would have validity throughout India. The certificate granted with respect to the debts and securities specified in the certificate, shall be conclusive as against the persons owing such debts or liable on such securities. Further, it affords full indemnity to all persons as regards all payments made, or dealings had, in good faith, with the certificate holder in respect of the debts or securities of the deceased.
Legal Heir Certificate
Meaning: A legal heir certificate or a certificate of heirship is a different kettle of fish altogether and is sometimes required. It is granted under the Bombay Regulation No. VIII of 1827, a pre-independence Order of the then Governor General of India. This is a requirement which several legal practitioners are also unaware about and practically, it can be quite a task to obtain one. Generally, it is issued by a tehsildar. However, in the city of Mumbai, the City Civil Court would issue such a certificate.
It is issued to provide formal recognition of heirs, executors and administrators and for appointment of administrator and managers of the deceased’s property by the courts. The Regulation states that it is generally desirable that the heirs, executors or legal administrators of persons deceased should, unless their right is disputed, be allowed to assume the management or sue for the recovery in Courts of justice. Yet in some cases it is necessary or convenient that such heirs, executors or administrators, in order to give confidence to persons in possession of, or indebted to the estate to acknowledge and deal with them, should obtain a certificate of heir-ship, executorship, or administratorship, from the competent Court.
In Anthony Fernandez and others, 1993(1) Bom.C.R. 580 the Bombay High Court has held that Bombay Regulation VIII of 1827 continues to be in force and the provisions thereof are supplemented in certain respects by the Indian Succession Act, 1925. Conse-quently, an application for recognition of a person as an heir of the deceased can be made under this Regulation.
Effect of Certificate: If an heir is desirous of having his legal heir right formally recognised by a Court in order that it is safer when he deals with persons, then he can apply to the Court for recognition as the ‘legal heir’. The Judge would then invite objections within one month from the date of Notice. If the Judge is satisfied that there are no objections or they are not sufficient, then he would grant recognition in the form of a Certificate in the form contained in Appendix B to the Regulations. The Certificate would regonise the person named as the legal heir, executor or administrator of the deceased.
An heir, executor or administrator, holding a proper certificate, may do all acts and grant all deeds competent to a legal heir, executor or administrator, and may sue and obtain judgment in any Court in that capacity.
An heir, executor or administrator, holding a certificate, shall be accountable for his acts done in that capacity to all persons having an interest in the property, in the same manner as if no certificate has been granted.
Certificate creates No Title: R.8 provides that the Certificate confers no right to the property, but only indicates the person who, for the time being, is in the legal management thereof, the granting of such certificate shall not finally determine nor injure the rights of any person; and the certificate shall be an-nulled by the Court, upon proof that another person has a preferable right.
In Aloysius Manuel D’souza v Mary Kamala William Manuel D’souza, 2006(6) Bom.C.R. 56(O.S.), a Division Bench of the Bombay High Court held that the grant of heirship certificate does not establish the right of a party in property of the deceased by itself. The right, if any, of a person claiming ownership in the property of the deceased are not taken away by grant of an heirship certificate to an heir. On the other hand, the Regulation makes it clear that heir-ship certificate holder is accountable to all persons having an interest in the property for the acts done by him. Based on the heirship certificate simplicitor the heirship certificate holder cannot be said to have acquired any right, title or interest in the estate of the deceased.
In Group Grampanchayat v Sunanda Shamrao Bandishti, 2011 (5) Bom.C.R. 162, it was held that the grant of an heirship certificate to the respondents would not in any way affect the right, title or interest, if there be any, of the petitioner in any of the properties of the deceased. In proceedings for heirship certificate, the Court is not required to determine title of the deceased to any property. It is required only to consider whether the persons claiming heirship certificate are heirs of the deceased. If any person comes forward to claim nearer kinship than the applicants, the rival claims for the applicant and the person claiming nearer kinship and to be an heir would be considered by the Court. The Court may decline to grant heirship certificate to an applicant and come to the conclu-sion that the applicant is not an heir of the deceased or that there are other nearer kins who are entitled to the heirship certificate. The question of title to the property allegedly held by the deceased is alien to such enquiry. Whether the deceased had any title to the property is not and indeed cannot be decided by the Court in an application for ‘heirship certificate’ made under the Regulation.
Required For: It may be required for transferring electricity meter, telephone connection, bank account, etc., of the deceased in the name of the legal heir. It may also be required if a person is buying property belonging to the deceased to establish that the sellers are the true legal heirs.
One other important area where the legal heir certificate is required is for efiling the Income-tax Return of the deceased u/s. 159 of the Income-tax Act. Thus, for the period starting from 1st April of the year in which the assessee expired till the date of death, his legal representative would be assessed u/s. 159. A new feature has been introduced in case of efiling for registering the legal heir to do efiling on behalf of the deceased assessee. The documents required for registering a person as a legal heir are copy of the Death Certificate, Copy of PAN card of the deceased, Self attested PAN card copy of the heir and the legal heir certificate. Thus, this cumbersome certificate is required by the Income-tax Department. This is one area where representations need to be made to the CBDT to do away with the requirement of furnishing a legal heir certificate for efiling the return of a deceased assessee.
Conclusion
As would be evident from the above discussion, there are several succession documents which one comes across when a person dies. Obtaining them can be quite an arduous task for the family of the deceased. Just as the Government has introduced efiling in several areas, such as, income-tax, service tax, company law, etc., time has come for introducing online applications for several of these documents. If that is too much to ask then let us have a separate fast track Court dedicated to obtaining all these succession documents. Why not have an one-stop shop concept for all things related to succession? Till such time as India reaches an utopian situation, I leave you with my modified version of the famous saying, “Where there is a Will, there is a Way” : I conclude by saying:
“Where there is a Death, there is a Succession,
Where there is a Succession, there may be an Argument,
And if there is an Argument, there is a need for a Succession Document!!”
