Registering a will and obtaining a probate are mutually exclusive

What is the maximum time limit for getting a probate and the chances of its success if the will is registered? Is it necessary to call witnesses of the registered will? If the distribution of assets is already made as per a registered will, is it necessary to get a probate as the same may involve stamp duty and other expenses? If a registered will says the Hindu Undivided Family (HUF) be dissolved and be distributed among coparceners who are also members, can married daughters, not shown as members in bank records, lay claim?
—B. Kumar

There is no time limit for applying for a probate or obtaining the probate. A registered will merely certifies the authenticity of the will. Against this, a probate is granted to an executor appointed in the will for the purpose of determining whether the will of a testator was duly executed and attested and whether at the time of such execution, the testator was of sound mind and was capable of comprehending the nature and extent of his actions, and establishes the genuineness of the will. So, registration of a will and obtaining a probate are mutually exclusive and your chances of getting a probate do not increase by presenting a registered will for obtaining probate.

Courts have wide powers in matters of grant of probate. If a will is challenged or disputed, the court would generally call the witnesses of a will, irrespective of whether it is registered or not, though it is not absolutely necessary to do so.

If a will has been administered, i.e. if the assets of the deceased person who made the will have already been distributed as per the will, it is not always necessary to get a probate. However, if a probate is obtained even after the distribution of assets as per the will, the acts of the executor of the will in respect of the distribution will be validated. Obtaining a probate will attract payment of court fees and not stamp duty.
One of the things to bear in mind in respect of probate proceedings is to ensure that all the evidence needed to prove the will in court is in place and that the witnesses of the will are able to testify with respect to the execution and attestation of the will. It is important to note that the court would generally also examine the witnesses to prove the soundness of the mind of the testator at the time of executing the will and the circumstances in which the will was made and executed.

Effective 9 September 2005, all daughters of coparceners in an HUF shall be coparceners in their father’s HUF if their father was alive at the time the amending provisions of the Hindu Succession Act came into force. However, if the testamentary disposition or distribution or partition of the assets of the HUF has been effected before 20 December 2004, the same shall not be affected by the amendment. So, even if the names of the daughters, married or otherwise, do not appear in the bank records, they will by birth be entitled to and can lay claim on their father’s HUF property if their father was alive at the time of the amendment of the Act in 2005.


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