Manav
Asked November 23, 2013

Probate & Will

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what is probate ? and is probate necessary for validating a will ?

Answer 1

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Asmita Rakhecha

Probate as defined under Section 2(f) of the Indian Succession Act, 1925 provides that, it is a copy of the will which has a seal of a competent Judicial Authority that grants administration or right in the property of the person who executes the will. Section 213 of the Act states that a probate is mandatory, as a right in the property cannot be established in any Court, if such a probate of the will has not been granted by any competent court under which the right is claimed. However, a letter of administration with the will or an authenticated copy of such will maybe annexed to validate the right of the executor or legatee of the will. This section applies however, to only Hindus, Buddhists, Sikh, Jaina or Parsis and not to Muhammadans. In the case of Clarence Pais & Ors vs. Union of India (AIR 2001 S.C.1151), the Supreme Court of India upheld this law and stated that ‘this section is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity, and the section does not prohibit the will being looked into for purposes other than those mentioned in the section.’

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