Wills and the questions related thereto have always been intriguing for most of us as there is not much clarity among the general people regarding making of a Will, its execution, steps involved therein and the role of the Courts.
Will is in general the legal declaration of the intention of the testator with respect to his properties which he so desires to carry into effect after his death. This definition of the Will is under the Indian Succession Act. Since it is a document which takes effect only after the demise of the testator, it can be revoked and redrafted any number of time during his lifetime, the last Will left behind by the testator is to be considered as his legal declaration. It should have revoked all other Wills and codicils made before that date of the last Will.
The Will so made, may not necessarily be registered as is the general perception, even a Will made on a plain paper witnessed by witnesses is a valid Will till it is established otherwise.
The Testator may appoint an Executor to give effect to his Will. In cases where no Executor has been appointed by the Testator, or the Executor so appointed is legally incapable or refuses or dies before the Testator or before he has proved the Will, or before he has administered all the Estate of the deceased, the Court may appoint an administrator by granting Letters of Administration which may be granted to the universal or residuary Legatee in respect of the deceased's estate.
Under Section 213 of the Indian Succession Act, states that no right as executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction, in India has granted probate of the Will under which the right is claimed or has granted Letters of Administration with the Will or with a copy of an authenticated copy of the Will annexed.
Probate can be granted only to the executor appointed by the Will as per Section 222 of the Indian Succession Act. A probate establishes the title of the beneficiary in the property received by him under the Will. Thus an executor or legatee cannot establish his right under the Will in a Court of law without obtaining the Probate or Letters of Administration. This however applies to people covered under Section 57 (a) and (b).
In order to obtain probate one has to make an application stating details about the deceased before the Court of competent jurisdiction with a copy of the Will. The Court shall summon the kith, kin and heirs of the deceased by way of notices and seek their say in the matter of the Will. If there are objections to the genuineness of the Will, such heirs can file their objections which shall be tried before the Court and only upon being satisfied that it is a valid Will and that the same was made by the Testator while he was in a sound state of mind, shall the Court grant probate or Letters of Administration as the case may be. Any other objection with regard to the rights of the Testator to dispose the properties under the Will cannot be challenged in an application for probate or letters of administration. The Court shall proceed on the assumption that the title vested in the Testator.