When we see the Indian Society, we find that in the typical middle-class family -if the head of the family has some Estate, he plans for registering or drafting a Will. Now the question strikes- What is a Will?
Will is the legal declaration of a person’s intention, which he/ she wishes to be performed after his/her death and once the Will is made by the testator/ testatrix, it can only be revoked during his/her lifetime
What is the essence and importance of Probate for a Common Man?
‘Probate‘ means the copy of a Will certified under the seal of a court of competent jurisdiction with a grant of administration of the estate of the testator. A probate can be granted only to the executor appointed under the Will. Further, a probate is essential if the Willis for immovable assets in multiple states.
If a person believes that some of his family member is acting smart for getting the property of the deceased Probated secretly, then one must Lodge a Caveat:
What is a Caveat?
Caveat a Latin term means ‘let a person beware’. In law, it can be explained as a notice or a precaution exercise (generally in probate cases) that a certain matter is not known that, the judgment is not passed, order is not issued without hearing the person who has filed the caveat. It can be made in an application already made or which is supposed to be made in the future.
A probate caveat is a document that is filed in court to prevent the proposed executors or administrators of a deceased person’s estate from getting authorization to administer the estate assets. A probate caveat is used to challenge a Will itself. For example, where someone believes that the Will was forged or was not written and approved by the deceased person.
If someone files a Probate Caveat in the wrong situation, the court may order that person to pay the costs suffered by the other party in dealing with the caveat.
A probate caveat must be filed immediately after a deceased person’s death and before probate are granted by the court.
Necessity of a Probate in certain cases:
As per the provisions of the Indian Succession Act, 1925 (“Succession Act”) the provisions of testamentary succession are applicable to the Will if:
(i) Made by Hindu, Buddhist, Sikh or Jain on or after the first day of September 1870, within the territories which at the 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 or
(ii) Made the Will outside those possession and limits, so far as relates to immovable property situate within those possession or limits.
Requirement for Locker operation of deceased by his legal heir in Banks:
Probate of a Will
It is pertinent to understand the process of obtaining the Probate of a Will. A Probate is granted by the High Court with the court seal and a copy of the Will attached. For seeking a Probate, the executor of the Will, as a Petitioner is required to file the petition (after making payment of applicable court fees depending upon the value of the assets) before the appropriate court (a monetary jurisdiction may require a higher court to issue a probate for high-value immovable assets) through an advocate. Thereafter, the court usually asks the Petitioner to provide the proof of death of the testator, as well as proof that the Will has been validly accomplished by the testator, and that it is the last Will and testament of the deceased. After receiving the petition for a Probate, the court issues a notice to the next of kin of the deceased to file objections, if any, to the granting of the probate and it also directs the publication of illustration on board to announce the general public. If there is no objection, on the other hand, if the next of kin of the deceased files their respective consent to the grant of Probate, then court grants the Probate, however, if the next of kin of the deceased files their respective objections to the grant of Probate, then the Probate Petition becomes the testamentary suit, to enable parties to lead evidence in the matter.
Can Probate be challenged?
The contender can challenge the Probate of Will on the following grounds:
1. The proceedings to obtain the grant of Probate were inadequate in actuality; or
2. The grant of Probate was obtained deceitfully by making a false suggestion, or suggestion, or by concealing from the court something material to the case; or
3. The grant of Probate was obtained by means of an deceptive accusation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or recklessly; or
4. The grant of Probate has become useless and inoperative through circumstances; or
5. The person to whom the grant of Probate was made has deliberately and without legitimate cause omitted to exhibit a catalogue or account in accordance with the provisions of Chapter VII of this Part, or has displayed under that Chapter an inventory or account which is untrue in a material respect.
Which in general case is quite difficult!
RAGHAVENDRA P SINGH
The Author is a Supreme Court lawyer
And Managing Partner of Concept Legal International