HOW TO APPLY FOR A PROBATE OF WILL

         Section 276 in The Indian Succession Act, 1925  provides for the procedure to obtain Probate

276. Petition for probate.—

(1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating—

(a) the time of the testator’s death,

(b) that the writing annexed is his last Will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner’s hands, and

(e) when the application is for probate, that the petitioner is the executor named in the Will.

(2) In addition to these particulars, the petition shall further state,—

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

The Caveator is entitled to object to its grant by operation of Section 284

Section 284 in The Indian Succession Act, 1925

284. Caveats against grant of probate or administration.—

(1) Caveats against the grant of probate or administration may be lodged with a District Judge or a District Delegate.

(2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to the District Judge.

(3) Immediately on a caveat being entered with the District Judge, a copy thereof shall be given to the District Delegate, if any, within whose jurisdiction it is alleged the deceased had fixed place of abode at the time of his death, and to any other Judge or District Delegate to whom it may appear to the District Judge expedient to transmit the same.

(4) Form of caveat.—The caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V.

Section 3(f) of the Hindu Succession Act, 1956 defines “heirs” means any person, male or female who is entitled to succeed to the property of an intestate under this Act

 Under what Grounds can one challenge a  Will?

When there is no proof of execution of a will

When it appears from the contents of the will that there was no intent to make such a will

When  the Testator was not of sound mind at the time of executing the will

Undue influence on the testator

When it appears that the Testator did not have the required ability or knowledge of understanding the will.

When the will is forged

Any person whos a legal heir or an interested person can file an objection to grant of probate

There is no limitation period upto which one can apply for probate of a will

One should always register a will to be on the safe side

Probate petition is accompanied by paying requisite court fees 

Once objection is filed after notice or when the noticee was made  aware after newspaper publication , the objector may request time for filing written objections.

295. Procedure in contentious cases.—In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.

Section 280 in The Indian Succession Act, 1925

280. Petition for probate, etc., to be signed and verified.—The petition for probate or letters of administration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be verified by the petitioner in the following manner, namely:— “I (A.B.), the petitioner in the above petition, declare that what is stated therein is true to the best of my information and belief.

OPINION OF HANDRWIRING EXPERTS

In Pawan Kumar Jhunjhunwala vs Sankarlal Jhunjhunwala And … Decided  on 5 March, 2014 the Hon’ble High Court of Calcutta  was hearing an appeal against an order whereby the trial court had allowed an  application  f iled by the  defendant no.3 in probate proceedings under Order 26 Rule 10A filed at the argument stage, however the court has  considered the fact that   “…This Court also notices the fact that the defendant no.3 took the point of authenticity of the document signed by the testator in his written statement filed in connection with the probate proceedings. In such circumstances the application subsequently filed by him under Order 26 Rule 10A of the Code of Civil Procedure can be construed as part of his consistent stand with regard to the authenticity of the testator’s will which includes the signature on the will” .

Furthur the Hon’ble High Court stated that “As observed earlier in this judgment, the Learned Trial Court, having regard to the principles governing the examination of questioned documents or part thereof is not denuded of it ultimate powers to form a conclusion based on the findings of the experts.”

Section 45 of The Indian Evidence Act, 1872  reads as follows:-

Opinion of experts. – When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting][or finger impressions] are relevant facts.

Such persons are called experts.

Section 73 of the Indian Evidence Act, 1872 reads as follows:-

Comparison of signature, writing or seal with others admitted or proved. – In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The Hon’ble High Court of Calcutta further held that  “

Furthermore, in view of the positive application put in by him requiring the signature to be analysed by a handwriting expert, the reference by the Learned Trial Court to such handwriting expert without undertaking the responsibility upon itself at the first instance can be well appreciated. As observed earlier in this judgment, the Learned Trial Court, having regard to the principles governing the examination of questioned documents or part thereof is not denuded of it ultimate powers to form a conclusion based on the findings of the experts.