Probate of Will Petition under Section 276 of the Indian Succession Act, 1925
Probate is the formal grant by a competent court certifying the authority of an executor to administer the estate under a Will. A petition for probate is governed principally by Section 276 of the Indian Succession Act, 1925, read with the provisions concerning executors, verification by an attesting witness, caveats, citations and the court's grant.
What is probate of a Will?
Probate is a court grant in respect of a Will to an executor appointed by the testator. It establishes the executor's representative title for administering the estate covered by the grant. Probate does not create the Will; the proceeding determines whether the Will propounded before the court is the valid last Will and whether the person seeking probate is entitled to the grant.
Important provisions of the Indian Succession Act, 1925
When is probate compulsory?
Section 213 deals with the right of an executor or legatee to establish rights in court. For Wills made by Hindus, Buddhists, Sikhs and Jains, Section 213(2) limits the operation of Section 213(1) to the classes of Wills specified in clauses (a) and (b) of Section 57. Accordingly, probate should not be described as universally compulsory for every Hindu Will throughout India.
Broadly, Section 57(a) concerns specified Wills made within the territories historically connected with Bengal and within the ordinary original civil jurisdiction of the High Courts at Madras and Bombay, while Section 57(b) extends the relevant provisions to Wills made outside those territories so far as they relate to immovable property situated within those territories. The exact statutory text and current territorial application should be checked for the particular estate.
Who can file a probate petition?
Under Section 222, probate can be granted only to an executor appointed by the Will, whether expressly or by necessary implication. If there is no executor capable and willing to act, the appropriate remedy may instead be an application for letters of administration with the Will annexed, depending on the circumstances and the provisions of the Act. A Section 276 probate petition should not incorrectly describe a beneficiary who is not an executor as automatically entitled to probate.
Jurisdiction and mandatory particulars under Section 276
A Section 276 petition should distinctly state the matters required by the Act, including:
- the date and place of the testator's death;
- that the Will annexed to the petition is the testator's last Will and testament;
- that the Will was duly executed;
- the approximate value of assets likely to come into the petitioner's hands;
- that the petitioner is the executor named in the Will;
- when filed before the District Judge, the deceased's fixed place of abode or property within the Judge's jurisdiction; and
- where assets are situated in more than one State, the additional asset particulars required by Section 276(3).
The applicable High Court rules, State court-fee law, pecuniary jurisdiction and local probate rules must also be checked. The forum may vary between a District Court and a High Court exercising testamentary jurisdiction.
Documents normally filed with a probate petition
Subject to local rules, the usual filing set may include:
- the original Will and any codicil;
- death certificate of the testator;
- schedule of assets and valuation;
- details of legal heirs / persons who would have succeeded on intestacy;
- petition signed and verified under the Act and applicable court rules;
- verification or affidavit of at least one attesting witness where procurable;
- supporting affidavit of the executor / petitioner;
- court-fee and valuation material required by the State law;
- proof of identity and address where required; and
- vakalatnama where the petitioner is represented by an advocate.
Citations, objections and caveat
After filing, the court may issue citations to persons who claim or may claim an interest in the estate. An interested person may lodge a caveat under Section 284. Section 285 protects the caveator by preventing the probate proceeding from being taken forward after entry of the caveat without the required notice. If the grant becomes contested, the proceeding is dealt with according to the Act and applicable testamentary rules.
The probate court primarily examines the Will and the entitlement to representation. Questions going beyond the testamentary jurisdiction, particularly independent disputes of title to property, may require separate adjudication in the appropriate proceeding.
Sample Petition for Probate under Section 276
The following is a general specimen. The title of the court, form of schedules, valuation affidavit, citations, court fee and supporting affidavits should be adapted to the rules of the court having testamentary jurisdiction.
BEFORE THE COURT OF THE DISTRICT JUDGE / COMPETENT TESTAMENTARY COURT AT ____________________
TESTAMENTARY / PROBATE PETITION NO. ______ OF 20__
IN THE MATTER OF THE ESTATE OF:
Late Mr. / Ms. ________________________________, Deceased
AND
IN THE MATTER OF A PETITION UNDER SECTION 276 OF THE INDIAN SUCCESSION ACT, 1925 FOR GRANT OF PROBATE OF THE WILL DATED ____________________
Mr. / Ms. ________________________________
Age: ______ years
S/o / D/o / W/o ____________________________
Resident of ________________________________
PETITIONER / EXECUTOR
MOST RESPECTFULLY SHOWETH:
1. That Mr. / Ms. ________________________________ (hereinafter referred to as the "deceased" or "testator") died on ____________________ at ____________________. A copy / original death certificate is filed with this petition in accordance with the applicable court rules.
2. That at the time of death the deceased had a fixed place of abode at ________________________________________________ and / or left property situated within the territorial jurisdiction of this Hon'ble Court. This Hon'ble Court therefore has jurisdiction to entertain the petition.
3. That the deceased executed his / her last Will and testament dated ____________________ at ____________________. The original Will is filed / deposited with this petition as required by the applicable court procedure and is referred to as Annexure / Exhibit ______.
4. That the said Will was duly executed by the deceased while capable of making the testament and was attested in accordance with law by the following witnesses:
(i) Mr. / Ms. ____________________, address __________________________________;
(ii) Mr. / Ms. ____________________, address __________________________________.
5. That the Petitioner is the executor expressly appointed / appointed by necessary implication under the said Will and is therefore entitled to seek probate under Section 222 read with Section 276 of the Indian Succession Act, 1925.
6. That to the Petitioner's knowledge the said Will dated ____________________ is the last Will and testament of the deceased and has not been revoked by any later testamentary instrument.
7. That the persons who would ordinarily be entitled to succeed to the estate if the deceased had died intestate, and other persons required to be disclosed under the applicable rules, are as follows:
| S. No. | Name and Address | Age | Relationship |
|---|---|---|---|
| 1 | ____________________________ | ______ | ________________ |
| 2 | ____________________________ | ______ | ________________ |
| 3 | ____________________________ | ______ | ________________ |
8. That the assets and credits of the deceased which have or are likely to come into the hands of the Petitioner are set out in Schedule I annexed to this petition. Their approximate gross value is Rs. ____________________.
9. That the liabilities / permissible deductions, if required to be disclosed for valuation, are stated in Schedule II. The approximate net value of the estate for the purpose of the present proceeding is Rs. ____________________, subject to final valuation and applicable court-fee law.
10. That if any part of the estate is situated in another State, the particulars required by Section 276(3), including the amount of assets situated in each such State and the relevant district, are set out below / in Schedule III: ________________________________________________.
11. That no other petition for probate or letters of administration in respect of the same Will has been filed by the Petitioner, except as specifically disclosed below: ________________________________________________.
12. That the Petitioner undertakes, upon grant and where required by law, to duly administer the estate, exhibit a true and full inventory and render accounts within the periods prescribed by the Indian Succession Act, 1925 and the orders of this Hon'ble Court.
13. That the petition is bona fide and the Petitioner is entitled to the grant sought.
Prayer
In these circumstances, the Petitioner respectfully prays that this Hon'ble Court may be pleased to:
(a) grant probate of the last Will and testament dated ____________________ of Late Mr. / Ms. ________________________________ in favour of the Petitioner as executor;
(b) issue citations / notices to such persons as this Hon'ble Court considers necessary;
(c) accept the schedule and valuation of the estate subject to verification, court fee and applicable law; and
(d) pass any other or further order considered just and proper in the circumstances.
Place: ____________________
Date: _____________________
PETITIONER / EXECUTOR
Through Counsel, if represented
____________________, Advocate
Verification by Petitioner
I, ________________________________, the Petitioner above named, verify that the contents of paragraphs ______ to ______ are true to my personal knowledge and records, paragraphs ______ to ______ are based on information believed to be true, and the legal submissions are based on advice received and believed to be correct. No material fact has knowingly been concealed.
Verified at ____________________ on this ______ day of ____________________, 20__.
PETITIONER
Verification / Declaration of Attesting Witness
I, ________________________________, S/o / D/o / W/o ________________________________, resident of ________________________________________________, being one of the attesting witnesses to the last Will and testament dated ____________________ of Late Mr. / Ms. ________________________________, state and declare that I was present and saw the testator sign / affix his or her mark to the Will, or that the testator acknowledged the signature / mark or the Will in my presence, and that I attested the Will as a witness in accordance with the facts stated herein.
I verify that the above statement is true to my knowledge.
Place: ____________________
Date: _____________________
ATTESTING WITNESS
Name: ________________________________
Signature: ____________________________
Suggested Schedule of Assets
| S. No. | Description of Asset | Location / Account Details | Approximate Value |
|---|---|---|---|
| 1 | Immovable property | ____________________________ | Rs. ____________ |
| 2 | Bank deposits / accounts | ____________________________ | Rs. ____________ |
| 3 | Shares / securities / investments | ____________________________ | Rs. ____________ |
| 4 | Movable property / valuables | ____________________________ | Rs. ____________ |
| 5 | Other assets / credits | ____________________________ | Rs. ____________ |
Probate procedure, forms, valuation, court fee, citation requirements and filing documents vary between States and courts. The specimen should be adapted to the applicable High Court / District Court testamentary rules and the facts of the particular estate.