Registered will - whether it is necessary to probate?

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In India, the distribution and inheritance of a person's property is governed by the Indian Succession Act, 1925. The Indian Succession Act defines a “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". In other words, it is a legal instrument specifying the method to be applied in the management and distribution of a person's estate after his death. Upon the death of the testator, a property is transferred/ devolves in favor of his/her beneficiaries as per the terms of the will.

 

There are certain legal instruments specified in the Registration Act, 1908, which require compulsory registration with competent authorities. Registering instruments that require compulsory registration as per this Act qualifies them as being valid instruments that are admissible in evidence in courts. Wills do not require compulsory registration per se under the Registration Act, 1908. Thus, even an unregistered will that has been properly executed is a valid instrument in the eyes of law.

 

The Delhi Municipal Act stipulates that in the event of the death of a person who is primarily liable for payment of property taxes as mentioned above, the beneficiary on whom a property devolves is required to notify the MCD about such devolution within a period of six months from the death. When giving such written notification, the beneficiary is required to produce documents proving devolution of the property in his favor. As evidence, a beneficiary can furnish the will either registered or unregistered as evidence of a lawful transfer of the property in his favor.

 

However, as per a recent Circular released by the Government of Delhi, state officials have been directed to ensure that a beneficiary under an unregistered Will, now, mandatory obtains and submits a succession certificate/probate order to the MCD, in order to get the property mutated in his favor as well as for updating property records. On the other hand, a beneficiary furnishing a registered will is not required to additionally provide a succession certificate/ probate order. For the purpose of better understanding a `Probate Order' herein means copy of a Will certified by Court of competent jurisdiction, which is to be treated as a direct evidence of the authenticity of a will thereby granting administration to the asset.

 

Hence in view of aforesaid, if your Will is unregistered, under such circumstances you will have to file an application under Section 276(1) of Indian Succession Act 1925 for seeking Probate orders. Section 276(1) of Indian Succession Act is reproduced here under for your better understanding:

 

1. Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating—

 

a. the time of the testator’s death,

 

b. that the writing annexed is his last Will and testament,

 

c. that it was duly executed,

 

d. the amount of assets which are likely to come to the petitioner’s hands, and

 

e. when the application is for probate, that the petitioner is the executor named in the Will.

 The procedure of filing a probate application is stated as under:

 

The application for a probate under Section 276(1) has to be made to the competent court (a pecuniary jurisdiction may require a higher court to issue a probate for high-value immovable assets) through a lawyer. The application must contain the time of the testator's death; a copy of the last will; and the amount, title deeds and documents pertaining to the assets in question.

 

After receiving the application, the court issues a notice to the relatives of the testator to file their objections (if any), for the granting of probate of a will. A general public notice is also given in a newspaper.

 

If there are no objections raised and/or if the Court is satisfied that the Will in question has been validly executed, it will grant probate of a will only to the executor named in the Will.

 

The grant of probate of a will may be cancelled by the District Judges in the respective district, if:

 

a. the proceedings to obtain the grant were flawed; or

 

b. if the grant was obtained by fraud, ignorantly alleging an essential, or by making false suggestions; or

 

c. if the person to whom the grant was made willfully and without reasonable cause, omitted to exhibit an inventory of account required by law; or

 

d. exhibited inventory of account.

 

Usually, if no objections are raised, Probate can be granted within 6 to 9 months, but if objections are raised, then no time limit can be prescribed for same.

 

Furthermore, with respect to expenses, you would be required to pay a Court fees as mentioned in Section 19 -1 of Court Fees Act which is approximately 2% to 3% on the value of the property. Along with the court fee, you would require to pay the fee of lawyer which may depend upon the facts of your case.
 

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