A probate of a will means a certified copy of the will stipulating that the executor (The person in whose favour the will was originally made) can administer the rights and duties of the will in their favour. It is not mandatory to probate a will. However, It is advisable best in your interest to probate the will as it makes your rights on the will stronger. Probating will require an application to be made in the court of competent jurisdiction along with the death certificate of the testator. Through the public notice, the court will obtain a no objection or contest from the inherited beneficiaries of the testator, and only after this, A certificate to the effect that your will is probated will be issued. You will be required for legal assistance throughout the process. Be sure to consult one.
Did you know a change in the marital status during the life of the testator requires a change in the Will, even if you are not leaving all the assets to your spouse, you will still need to change the will.
What is the probate of a will?
A will is a legal document or declaration of transferring the inherent wealth in favor of your offspring or any other Individual or person (having a legal substance like a company) when you ceased to exist .i,e. after your death. A will can only be made during the life of the person making the declaration.
Probate of a will refers to an attestation that the will is getting executed (with valid proof of the death of the testator) and only after the probate of a will, one can transfer the immovable property (only in a few states, it is mandatory) in his or her name.
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Importance of Probate of a Will
The general people are utterly uninformed about the circumstances in which a Will is required. According to the Indian Succession Act of 1925, a probate is required whenever a will is made in an area that was governed by the Lieutenant-Governor of Bengal or inside the territorial limits of the regular original civil jurisdiction of the Madras and Bombay High Courts of Judicature.
Probate of a will in India is the legal process of proving the authenticity of a will and transferring the deceased person's assets to the beneficiaries named in the will. The process is governed by the Indian Succession Act of 1925 and is administered by the courts.
How to probate a will?
It is important to comprehend the procedure for getting a will's probate. The High Court issues a Probate under its seal and with a copy of the Will attached. Following is the step by step legal process to probate a will -
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The executor of the will must file the petition for probate with the court of competent judication through an advocate, after paying any applicable court fees based on the value of the assets.
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Thereafter, The court may require a few of the documents to be submitted within a stipulated time. These are as follows -
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A death certificate of the testator
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A proof that the will is validly executed (It is considered otherwise invalid if the will is executed under coercion, undue influence, fraud, or misrepresentation.
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A testimony or other valid proof that it is the last will of the deceased (or Testator)
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Once these documents are submitted by the petitioner, the court will assess the validity of the documents and thereafter, the court will issue a notice to the kin of the deceased to state or show any objection to the petitioner.
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They will also direct the issue of a public notice of the order of the court.
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If no objection is shown by the kin of the deceased, the court will pass an order granting the probate in the favour of the petitioner.
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However, if the kin of the deceased show their objection, the suit will turn into a testamentary suit and requires the aggrieved parties to show evidence that favors their objection.
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When can a Probate of a Will be Challenged?
Challenging a will can be difficult since the testator is no longer there to defend himself and courts often adhere strictly to wills. However, if you have a stake in the Will, you can contest it. If you are successful in persuading the court, the Will may be entirely or partially revoked. Before contesting the will, it is advisable to seek legal counsel from an experienced attorney because the law governing such challenges is complex and each case's facts are unique.
However, On the following grounds, a will or probate of a will can be challenged -
Lack of Due Execution
A will must be in writing and signed by the testator in the presence of two witnesses to form a valid will. The witnesses must also attest to the will. The Will may be contested in court if the procedure is not strictly followed.
Lack of testamentary intention
In this case, the claimant must demonstrate that the testator had no intention to form a will. This defence is rarely utilised because it is challenging to establish.
Lack of testamentary capacity
According to the law, only those who are older than 18 can create a will. Given that adults are believed to have the testamentary ability, a will can be contested on the grounds of senility, dementia, insanity, drug or alcohol use while under the due influence, or in some other means proving that the testator lacked the mental capacity to make a will. To dispute a will on the basis of mental capacity, the challenger must essentially prove that the testator or the person who wrote the will did not comprehend the implications of doing so at the time it was written.
Undue influence
A contestant of a will may contest it by demonstrating that it was obtained through fraud, forgery, or undue influence, without the testator's own free will or without sufficient consideration of the implications of the clause stated in the will.
Fraud or forgery
The burden of proving that the Will was either forged (not signed by the testator) or was signed in fraudulent conduct would fall on the party contesting it.
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Revocation of a previous Will
A Will may be contested in court even though it has been registered. The mere fact that a Will has been registered (although doing so is not required by law) will not be sufficient to allay all doubts about it. The last testament may not be a legally recorded Will. A newly created will takes precedence over a registered will, even if it is unregistered. Even if the Will is registered, the court will examine it if there are any suspicious facts that may otherwise question the validity of the will.
Conclusion
A will is a legal document or declaration of transferring the inherent wealth in favor of your offspring or any other Individual or person when you ceased to exist .i,e. after your death. A will can only be made during the life of the person making the declaration. Probate of a will is necessary to transfer the properties of a will in the favour of the executor. Without probate, a rightful claim may be challenged in court. Thus, probating a will is necessary to establish the benefits of the beneficiary. Hope you find this article informative and useful.
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