It’s advisable to obtain probate if said will is contested - Livemint

I am the beneficiary and executor of my aunt’s will. She has left her property to me in Pune. I have not applied for a probate as my lawyer says that being the only beneficiary I do not need a probate. However, the housing society is asking for a probate before name change as they have received a letter from my cousin claiming that my aunt’s will submitted by me is a fake. If I die then do my children have to obtain probate for my aunt’s will since they are not named as executors in the will? Can the property be transferred to my name without a probated will? —Katya

While answering this query, we are assuming that your aunt was a Parsi at the time of her death and was governed by the provisions of the Indian Succession Act, 1925. We are also assuming that you have been appointed as the sole executor under your aunt’s will.
Section 213(1) of the Act inter alia states that the right of a legatee (a person who inherits under a will) to property bequeathed under a will can’t be established in a court unless a court of competent jurisdiction in India has granted a probate of the will under which the right is claimed or letters of administration with the will annexed thereto have been obtained. However, section 213 (2) states that the said section is not applicable to the wills executed by Mohammedans, Hindus, Buddhists, Sikhs and Jains except in certain circumstances mentioned therein. Further, section 213 (2) states that in case of a Parsi dying after the commencement of the Act, a probate is necessary if the will in question is made or the property bequeathed under the will is situated within the “ordinary original civil jurisdiction” of the Bombay high court. Since Pune does not come within the said jurisdiction, it is not necessary for you to obtain a probate of your aunt’s will.
While it is not mandatory to obtain a probate of your aunt’s will, it would still be advisable for you to obtain a probate since your cousin is contesting the will.
To obtain a probate of a will, you will have to file a probate petition in a court of competent jurisdiction. It takes about 8-10 months to obtain a probate if the petition is not contested by any person. At the time of filing the petition, court fees will have to be paid. It is to be noted that if the probate petition filed by you is contested by your cousin (which can be done by filing a caveat in your probate petition) your petition will be converted into a testamentary suit and the genuineness of your aunt’s will, will then be adjudicated upon.
It is to be noted that as per section 222 of the Act, a probate shall only be granted to an executor of a will. Section 226 of the Act 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 sections 222 with 226 of the Act it is clear that probate petitions are essentially at the instance of the executors named in the will and can survive till the executors survive. The moment the sole executor or all the executors die, the question of the proceeding being kept alive does not arise at all as there would be no occasion in such a case to grant any probate. Such a proceeding would die a natural death due to non-survival of any executor.
If you pass away prior to filing the probate petition, your children may apply for letters of administration with a will annexed to it. If your petition is uncontested and you pass away before the court grants you a probate of your aunt’s will, your children may intervene in the probate petition and amend the same so as to apply for letters of administration with a will annexed to it.
If your petition is contested and is converted into a testamentary suit and you pass away during the pendency of the suit, your children will be brought on record as your legal heirs. However, the prayers/release will have to be amended by your children so as to apply for letters of administration with will annexed, as your children have not been appointed as executors under your aunt’s will. Your children will be granted letters of administration with the will annexed to it and shall be appointed as administrators of your aunt’s estate.



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