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Jayendra Sevada (Advocate)     13 January 2009

Probate of any WILL

Dear all members,


I have a will and i wanted to probate it with the district court. Kindly send me the draft on that particular point.


 Thank you for your kind support.


 


Jayendra Sevada


 (Advocate)


 


NB- I do not need the succession certificate. I need the draft of Probate.


 



 8 Replies

AEJAZ AHMED (Legal Consultant/Lawyer)     14 January 2009

Dear Jayendra,


A PROBATE : ---



  • Probate means

    • the copy of the will is given to the executor

    • together with a certificate granted under the seal of the court

    • and signed, by one of the registrars, certifying that the will has been proved



  • The application for probate shall be made by petition to the court of competent jurisdiction.

  • A copy of the last will and testament of the deceased should be annexed to the petition.

  • The copy of the will and the copy of the grant of administration of the testator's estate together, form the probate.

  • It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator.

  • A probate is obtained to authenticate the validity of the will.

  • The probate is still the only proper evidence of the executor's appointment.

  • The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator.

  • Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.

BHANU RASPUTRA (ADVOCATE & SOLICITOR divyatta.r@gmail.com)     14 January 2009

probate petition  format can be taken from any high court rule book  . or in drafting an dpleading books.


it is all depend upon person taking probate of WILL and contents of WILL. THEN finally we can help u.

AEJAZ AHMED (Legal Consultant/Lawyer)     14 January 2009

Dear Jayendra,


You being a "ADVOCATE" yourself can "DRAFT" the "PETITION FOR PROBATE" as per the ccumstances of your case.


It is very clearly mentioned in the Section. 276 of The Indian Succession Act-1925, about the "Petition for Probate", (a) How to Draft and (b) Content of the petition, please go through the Act and most particularly Sec.276.


For your reference I am herewith attaching One File; which contain Section 276 of the Act, and Two Judgement of different High Courts about the "defect of the Petition" .


So, you also be careful while drafting the same, as in one of the case it happend as follows:



High Court Finds Lodha’s Probate Petition Defective

 

Kolkata, Sept 14, 2004: (NEWS)

 

The Calcutta High Court on Tuesday said it would decide the maintainability of Rajendra Lodha’s probate petition for Priyamvada Birla’s purported will at a later stage after it was found to be defective and directed him to file the original of the registered will in ten days.

 

Passing the order, Justice Kalyanjyoti Sengupta observed that as Justice SK Mukherjee, who had earlier declined to hear the matter on personal ground, had scrutinised the probate petition and prima facie found it to be in order, he would not pass an order at this juncture on the alleged defects in the petition.

 

The court’s order came after its testamentary department pointed out a number of anomalies in Mr Lodha’s application including the failure of the applicant to get the petition verified by one of the three witnesses to the disputed will.

 

As per law, one of the witnesses to a will should verify the probate petition after it is submitted for legal authentication. However, this had not been done in case of Lodha’s petition, the departmental report said. Justice Sengupta, however, directed Lodha’s solicitor Anindya Mitra to file the original of the registered will within ten days of receipt of the order with a supplementary affidavit as it has also been found that it had not been submitted with the application as per requirement.

 

Mr Lodha had only submitted affidavits by two witnesses with his application which was disputed by the Birla side on Tuesday. Solicitor PK Ray, appearing for MP Birla’s sisters Radha Bai Mohta and Laxmi Bai Newar, submitted that affidavits had been signed by the witnesses much before the applications had been filed on July 17.

 

Mr Ray submitted that while Mr Lodha had filed his probate petition on July 17, one of the attesting witnesses to the will of 1999, PL Agarwal signed his affidavit on July seven, and another, Dr Madan Vaidya, on July eight.

 

He submitted that the witnesses could not have known the contents of the probate application as they had signed affidavits much before and claimed that as such the application itself was defective.

 

Interestingly, the controversy over Priyamvada Birla’s purported will had erupted only on July 12 when Mr Lodha read out its contents to senior Birla family members and they decided to challenge it. Both Dr Vaidya and Agarwal are close to the Birla family as Dr Vaidya has been a family physician of almost the entire Birla clan... and Agarwal is one of the solicitors with Khaitan & Co, the designated solicitor firm in Birla’s legal battle against Lodha. The third witness in the will is Mahabir Prasad Sharma who reportedly also belongs to the Birla camp.

 

The direction to submit the original registered will had been given as Lodha had filed the original of the unregistered will of Priyamvada and a photocopy of the registered will.

The judge also directed the registrar-in-insolvency to return the original unregistered will to Lodha. The testamentary section had pointed out a number of other anomalies in Lodha’s probate application.

 

Birlas had filed six caveats against Lodha’s probate application, four of them had been challenged by Lodha on grounds of their locus standi to raise objection in the matter while the court has already allowed MP Birla’s two sisters to challenge Lodha’s petition. The court’s order to Lodha to submit the original of the registered purported will of Priyamvada Birla came only a fortnight after Lodha’s counsel strongly objected to Birla’s application to allow them to submit notarised photo-copy of the purported mutual will of MP Birla and Priyamvada, for which they filed probate application.


 


Attached File : 12 petition for probate.doc downloaded: 768 times

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     15 January 2009

Thanx AHMED SIR, for providing helpful information.

Advocate@Law Field (Legal Associate)     03 February 2012

Is there different form of Probate Petition for Unregistered Will?

Mrs . Shanta Rani (Housewife)     01 April 2012

Must compliment all for Quality discussion !

Now my questions....

A) In case of an Unregistered WILL can Mutation and transfer of property take place?

B) In case of an Unregistered WILL , If the other legal heir give a NOC ( No Objection Certificate and the property is tranferred, will it be treated valid or can be challenged at a later date?

C) In case of an Unregistered WILL, If the other legal heir give a NOC ( No Objection Certificate which is attested by the Indian Embassy abroad and then property is tranferred by land holding authority (L&DO), will it be treated valid or can be challenged at a later date?

Robin (advocate)     12 May 2012

thank u sir ji...so helpful for us... 

Qureshi Wasim (junior counsel)     16 July 2012

can a unregistered will be allowed for probate..

its only notarised and not registered.

the person who had made the will had expired.


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