Probate to be granted only to an executor named in the will

Probate petitions are essentially at the instance of the executors named in the will.
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First Published: Mon, Dec 03 2012. 06 54 PM IST
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Updated: Mon, Dec 03 2012. 07 48 PM IST
My husband died of a heart attack within two years of my marriage. My husband was the only son and his two elder sisters got married before our marriage and are settled in Mumbai. The only survivor is my 75-year-old father-in-law. A month before my husband died, he gave all his property worth about Rs.5 crore to his father through his will, giving me (wife) nothing. The will has been submitted in the Pune civil court for a probate. I have challenged the will. What will be the fate of the case if my father-in-law dies before the case reaches a conclusion? Can you cite some related laws that can be helpful? Six months back, I also filed a case under Hindu Succession Act, claiming that I am the only class I heir of my husband.
— Priti
For answering this query, we are assuming that your husband’s will was executed in Pune, any immovable property that is the subject matter of such will is situated in Pune and that your father-in-law has been appointed as the executor under the will. We are also assuming that since you have challenged the validity of your husband’s alleged will, the probate petition filed by your father-in-law has been converted into a testamentary suit.
Section 213(1) read with section 57 of the Indian Succession Act, 1925 inter alia states that the right of a person to property inherited under a will cannot be established unless a court of competent jurisdiction in India has granted a probate of the will or letters of administration with the will annexed thereto have been obtained. However, section 213 applies to wills made by Hindus, Buddhists, Sikhs or Jains for wills made on or after 1 September 1870 within the territories which at the said date (being 1 September 1870) were subject to the lieutenant general of Bengal or within the local limits of the ordinary original civil jurisdiction of the high courts of judicature at Madras and Bombay.
As we are assuming that your husband’s will had been executed in Pune, under law it is not necessary to obtain a probate of his will since Pune does not fall within the ordinary original civil jurisdiction of the high court of judicature at Bombay. Thus, as per succession laws applicable to Hindus, your husband’s property automatically vests in your father-in-law on the demise of your husband due to the existence and contents of the alleged will (as it is not necessary to obtain a probate of the will to establish his right as an executor or beneficiary).
As per section 222, a probate shall only be granted to an executor of a will. Section 226 specifically provides that on the demise of an executor, representation would survive to the surviving executor or executors, as the case may be. Thus on reading section 222 with section 226, it is clear that probate petitions are essentially at the instance of the executors named in the will and can survive till the last of the executors survive.
The moment the sole executor or all the executors die, the question of the proceeding being kept alive does not arise as there would be no occasion in such a case to grant any probate. Such a proceeding would die a natural death due to the non-survival of any executor. Thus, if your father-in-law passes away before the conclusion of the suit, the suit will die its natural death as a probate can only be granted to an executor. But since your husband’s property has already vested in your father-in-law on your husband’s demise under your husband’s alleged will, that property will be treated as the property of your father-in-law on his demise and will devolve in accordance with your father-in-law’s will (if any) and in the absence of such will, in accordance with the rules of intestate succession set out in the Hindu Succession Act, 1956.
It would be advisable for you to obtain interim relief from the Pune civil court, restraining your father-in-law or his heirs, in the event of his demise before the conclusion of the testamentary suit (i.e. the probate petition converted into a testamentary suit), from parting with your husband’s property so as to safeguard your interests.
With regard to your queries on case laws, proving that the purported will of your husband is forged or executed under coercion or undue influence or not in exercise of his free will is a matter of fact and cannot be ascertained by case laws. In order to pursue the said contention, you will have to produce evidence to show that the same is a forged will and that the estate of your husband should devolve as per intestate succession.
Queries and views at mintmoney@livemint.com
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First Published: Mon, Dec 03 2012. 06 54 PM IST
More Topics: Ask Mint | estate planning | will | probate |
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