Probate of a will: when it is required, and when it is merely worth having

When probate is actually required — reading Section 213 properly

This is the question the whole page turns on, and it is almost always answered wrongly, in both directions. Some families take probate for a straightforward will that never needed it and pay an ad valorem fee on the whole estate for the privilege. Others rely on a will that could not be given effect to without probate and discover the problem when a buyer’s advocate looks at the title.

Section 213(1) states the bar: no right as 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, or letters of administration with the will annexed.

Section 213(2) then cuts that down sharply. It provides that the section does not apply in the case of wills made by Muhammadans or Indian Christians, and applies only in two situations otherwise. The first is wills made by a Hindu, Buddhist, Sikh or Jain that fall within clauses (a) and (b) of Section 57. The second is wills made by a Parsi dying after the Indian Succession (Amendment) Act, 1962, made within the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and made outside those limits so far as they relate to immovable property within them.

So everything depends on Section 57, and Section 57 is a piece of nineteenth-century geography that still governs. Clause (a) covers wills and codicils made on or after 1 September 1870 within the territories that at that 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. Clause (b) covers wills made outside those territories and limits, so far as they relate to immovable property situated within them.

The practical consequence is a rule of thumb worth stating plainly: a Hindu will made in Kolkata, in the older parts of Chennai or in the older parts of Mumbai, or a will made anywhere else that deals with immovable property in those areas, needs probate before rights under it are established in court. A Hindu will made in Jaipur, dealing with a house in Jaipur, does not.

Probate is not compulsory. Should you take it anyway?

Frequently, yes — and the reason has nothing to do with Section 213. Probate is a court order that the will is the last valid will of the deceased and that the executor has authority under it. Once it exists, a bank, a registrar, a housing society and a buyer’s advocate all stop asking the questions they would otherwise ask, because the question has been decided.

The counter-argument is the fee, which is a percentage of the estate, and the time. So the sensible way to make the decision is to ask what problem you are anticipating.

Who may apply, and what happens when there is no executor

Section 222(1) is short and absolute: probate shall be granted only to an executor appointed by the will. Sub-section (2) allows the appointment to be express or by necessary implication, and the illustrations to the section give examples — a will saying "I appoint C my executor if B will not" appoints B by implication.

That rule has a consequence people do not expect. A will with no executor named cannot be probated at all. Nor can one whose executor has died before the testator, or has died after proving the will but before administering the whole estate, or is legally incapable, or simply refuses to act.

What happens then is not that the will fails. Section 232 provides that where the deceased has made a will but appointed no executor, or appointed an executor who is legally incapable or refuses to act or has died before the testator or before proving the will, or where the executor dies after proving but before administering the whole estate, a universal or residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to them — of the whole estate, or of so much of it as is unadministered.

That is why the two grants sit together on this page. They are not alternatives you choose between; which one you apply for is decided by whether there is an executor able and willing to act.

The no-will counterpart: letters of administration on an intestacy

Where there is no will at all, the corresponding grant is letters of administration simpliciter, and the Act says who may have them. The rule differs depending on the personal law of the deceased, which is why the two sections sit next to each other.

Section 218 applies where the deceased died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jain, or an exempted person. Administration may be granted to any person who, according to the rules for the distribution of the estate applicable to such a deceased, would be entitled to the whole or any part of the estate. Where several such persons apply, it is in the court’s discretion to grant it to any one or more of them. Where no such person applies, it may be granted to a creditor of the deceased.

Section 219 applies to everyone else, and it sets out a detailed order: the widow first, unless the court sees cause to exclude her on the ground of a personal disqualification or because she has no interest in the estate; the court may associate others with her; where there is no widow or she is excluded, the persons beneficially entitled under the rules for distribution of an intestate’s estate, with a proviso that where the mother of the deceased is among that class she is solely entitled to administration; those in equal degree of kindred are equally entitled; a surviving husband has the same right in respect of his wife’s estate as a widow has in respect of her husband’s; and where nobody connected by marriage or consanguinity is entitled and willing to act, letters may be granted to a creditor.

What the petition contains, and what the court will want to see

Section 276 sets out the requirements. The application is by a petition, distinctly written in English or in the language in ordinary use in proceedings before that court, with the will annexed — or, in the cases mentioned in Sections 237, 238 and 239, a copy, draft or statement of its contents.

The petition must state the time of the testator’s death; that the writing annexed is the testator’s last will and testament; that it was duly executed; the amount of assets likely to come to the petitioner’s hands; and, where the application is for probate, that the petitioner is the executor named in the will.

Sub-section (2) adds two more. Where the application is to the District Judge, the petition must state that the deceased at the time of death had a fixed place of abode, or had some property, within the judge’s jurisdiction. Where it is to a District Delegate, that the deceased had a fixed place of abode within the Delegate’s jurisdiction.

Sub-section (3) deals with assets in more than one State: where the application is to the District Judge and any part of the assets likely to come to the petitioner’s hands is in another State, the petition must state the amount of assets in each State and the District Judges within whose jurisdiction they are.

The averment that repays the most care is that the will "was duly executed". That is a reference to Section 63, and it is the point on which contested probate proceedings are won and lost.

1. 1The time of the testator’s death — taken from the death certificate.
2. 2That the writing annexed is the last will and testament of the deceased. Where an earlier will exists, this is the averment that has to deal with it.
3. 3That the will was duly executed — signed by the testator, and attested by two or more witnesses in the manner Section 63 requires.
4. 4The amount of assets likely to come to the petitioner’s hands. This is what the ad valorem court fee is computed on.
5. 5For probate, that the petitioner is the executor named in the will.
6. 6That the deceased had a fixed place of abode, or property, within the jurisdiction of the court applied to.
7. 7Where assets are in more than one State, the amount in each and the District Judges concerned.

How a will is proved: Section 63, and the witness who has to be found

A will is a document required by law to be attested, and the law of evidence treats such documents specially. Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 — which carries forward what was Section 68 of the Indian Evidence Act, 1872 — provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.

That single rule is why the attestation clause in a will matters so much more than its elegant drafting. Section 63 of the Indian Succession Act requires that the testator sign or affix a mark to the will, or that it be signed by some other person in the testator’s presence and by their direction; that the signature be so placed that it appears to have been intended to give effect to the writing as a will; and that the will be attested by two or more witnesses, each of whom has seen the testator sign or affix a mark, or has seen some other person sign in the testator’s presence and by their direction, or has received from the testator a personal acknowledgment of the signature — and each of whom has signed the will in the presence of the testator.

Two details in Section 63(c) are commonly missed. It is not necessary that more than one witness be present at the same time. And no particular form of attestation is necessary. But each witness must sign in the presence of the testator, and that requirement is not relaxed.

Where no attesting witness can be found, the position is not hopeless. Section 68 of the Bharatiya Sakshya Adhiniyam deals with proof where no attesting witness is found, but a case that reaches that section is a much harder case than one where a witness walks into the box. Which is the practical argument for taking probate while the witnesses are still available, and for choosing witnesses who are younger than the testator.

What happens when the will is contested

An uncontested probate proceeding is essentially administrative: the petition is filed, citations issue to those entitled to be cited, the attesting witness proves execution, and the grant is made. A contested one is a trial, with pleadings, issues, evidence and cross-examination, and it takes years rather than months.

What turns one into the other is fairly predictable. The grounds an objector actually runs are few.

• Want of due execution — that the will was not signed and attested as Section 63 requires. This is the technical ground, and it succeeds more often than people expect because attestation is done casually.
• Want of testamentary capacity — that the testator was not of sound mind. Section 59 provides that every person of sound mind not being a minor may dispose of property by will, and its explanations deal with intervals of lucidity, and with intoxication or illness that leaves a person not knowing what they are doing.
• Fraud, coercion or importunity — Section 61 makes void a will, or any part of one, whose making was caused by fraud or coercion, or by such importunity as takes away the free agency of the testator. The illustrations to that section are worth reading: persuasion is not coercion, and flattery is not fraud, but a will dictated by someone who controls the testator is invalid.
• Suspicious circumstances — not a statutory ground but a well-established approach: where the circumstances surrounding execution excite suspicion, the person propounding the will must remove that suspicion. A will signed shortly before death, in favour of the person who arranged its drafting, and unknown to the rest of the family, is the classic case.
• A later will — Section 70 provides that an unprivileged will may be revoked by marriage, by another will or codicil, by a writing declaring an intention to revoke executed like a will, or by burning, tearing or otherwise destroying it by the testator or by someone in the testator’s presence and by their direction, with the intention of revoking it.

Registration is not probate, and neither one substitutes for the other

These two are confused constantly, so it is worth separating them completely.

Registration of a will is optional. Section 18 of the Registration Act, 1908 lists wills among the documents of which registration is optional — as against Section 17, which lists the documents whose registration is compulsory. A will is valid whether or not it is registered, and an unregistered will is not weaker as a matter of law.

What registration does buy is practical. Section 40 of the Registration Act allows the testator, or after their death any person claiming as executor or otherwise under a will, to present it for registration, and Section 41 governs its registration. A will deposited with or registered by a Sub-Registrar cannot be lost, cannot be destroyed by an interested family member, and comes with a contemporaneous official record that it existed on a particular date and was presented by the testator. Where a will is likely to be challenged, that record is worth having.

Probate is a different thing entirely: a court order, after a judicial proceeding, that this is the last valid will. Registration is an office of record accepting a document. A registered will can still be challenged for want of capacity or for coercion; a probated will has already survived the challenge.

Worked examples