BackWill executed by a Muslim does not mandatorily need a probate
If a Muslim testator has not appointed an executor under his will, it is still valid
PremiumMy maternal grandfather had inherited some property from his father. My mother passed away in 1997 and my grandfather in 2018 without any partition or will. My mother’s brother is denying that I have any share in the property. Do I have a legal share in it as the son of a predeceased daughter, as per the recent clarifications on the Hindu Succession Act?
—Name withheld on request
Assuming you are Hindu by faith, note that Hindu law recognizes two classes of property, (i) joint family property or HUF; and (ii) separate (self-acquired) property. As your query does not specify the nature of the property, our response is based on the assumption that the property was self-acquired property. Since your grandfather did not execute a will, his estate would devolve as per the laws of intestacy governed by the Indian Succession Act, 1925. Hence, for your grandfather’s estate, the class I legal heirs would broadly be his children (which includes your mother and your uncle); his widow (if she was alive at the time of his death); his mother (being your great maternal grandmother, who we assume is no longer alive); any children of a predeceased daughter or son (which would include you); and a few other categories which are rare. Each such class I legal heir will take an equal share in the property. Accordingly, if the property is self-acquired, you have the right to seek your equal share in it.
If the property is joint family or HUF property, it must be shown that your late grandfather or great grandfather waived separate rights or claims on the property (position of the Supreme Court in Venkata Reddi vs Lakshmama case). The issue of interest in the maternal grandfather’s coparcenary property has not been conclusively settled by the Supreme Court, so speak with a counsel.
Is probate of a will not possible if there is no appointed executor? Is a will with no executor invalid? Does each beneficiary of the will need to be present during probate?
—Akram
Assuming that you are a Muslim by religious denomination, note that a will executed by a Muslim testator is not subject to the compulsory probate requirements under law. This would be a subject matter of Mohammedan personal law (which differs in its application among Shias and Sunnis). If a Muslim testator has not appointed an executor under his will, it is still valid.
If voluntary probate is still desired, the beneficiaries can apply to the relevant court for a grant of Letter of Administration (LoA). The court on receiving satisfactory proof of valid execution of the will issues a LoA to the beneficiary who will then perform the duties of an administrator of the estate. An LoA may be granted to one or several people who may apply to the court, but note that the categories are broad and not limited to the heirs of the deceased. The beneficiaries are at liberty to attend the court proceedings but attendance of each and every beneficiary is not compulsory. It will be a matter of personal choice. Prior to the final grant or order and early in the process, the court is required to grant an opportunity to the beneficiaries to raise objections, if any.
Rishabh Shroff is partner, Cyril Amarchand Mangaldas
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