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Probate Christian Will




When a Christian (Roman Catholic) leaves an unregistered Will in favour of his wife, does the Will need to be probated after his death?


Contents

1. What is a will – Christian

2. Indian Christian

3. What is registered and unregistered will?

4. What is the validity of an unregistered will?

5. How to register a will after the death of the testator

6. Probate meaning

7. Is probate required for Indian Christians

8. Amendment of Section 213




1. What is a will?


Testamentary Succession among Indian Christians: when the deceased has left a will bequeathing his property to specific heirs.


Testamentary Succession is dealt with under Part VI of the Indian Succession Act, 1925. Part VI of the Act has Sections 57 to 191, which comprehensively deal with all issues connected with wills and codicils.



2. Indian Christian – Does it include a Roman Catholic?


Yes. Section 2(d) of the Indian Succession Act defines “Indian Christian” means, a native of India who is or in good faith claims to be, of unmixed Asiatic Descent and who professes any form of the Christian Religion.


3. Registered and unregistered will


The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity.


In India, the registration of Wills is not compulsory even if it relates to immovable property. The non-registration of a Will does not lead to any inference against the genuineness of a Will. In other words, registration, therefore, does not give any special sanctity to the Will though registration of the Will by the testator himself evidences the genuineness of the Will.


4. What is the validity of an unregistered will?

Unregistered wills are regarded as legitimate in India since registration of a will is optional. It is legally suggested to register a will but there is no mandatory requirement for the same. It is important to note that an unregistered will can be registered even after the death of the testator.


5. How to register a will after the death of the testator?


The executor is required to make an application to the Sub-Registrar for registration of the will after the death of the testator along with the following documents:


· Copy of Will.

· Affidavit from Executor.

· Affidavits from both witnesses.

· Copy of Aadhar Card of Testator.

· Original copy of the Death Certificate of the Testator.


6. What is the meaning of Probate?


Probate is the authentication of the Will by the competent court that the Will is genuine.

Why Probate of Will is required: Generally,Probate is required only in case a Will is unregistered to get authentication from the court that the Will is genuine.


How to apply for probate of a will


· The executor of the will is required to file a petition and the original will to the court for grant of probate.

· The executor will have to pay the applicable court fees

· The petition must be filed before a competent court

· The next step is that the court asks the petitioner to establish the testator’s proof of death

· Next, the court calls for objections by issuing notice to the next of kin of the deceased.

· If there are no objections, then the court grants the probate

· If there are objections, then the probate petition becomes the original suit, and the parties will have to lead evidence and argue the matter.


7. Amendment of section 213


213. Right as executor or legatee when established. —(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in 3 [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.


(2) This section shall not apply in the case of wills made by Muhammadans [or Indian Christians], as per the 2002 Amendment. - https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A2002-26.pdf


The Indian Succession Act, of 1925 has no provision making it compulsory to take a probate order in case of an unregistered will. There is no requirement that a will be registered under Section 18 of the Indian Registration Act, 1908. Under this Act, a will is not needed to be registered, and an unregistered will is also valid.


Khurshid Alam vs. P. Pagnon Co. Pvt. Ltd. (108 Company Cases 523). In that case, the deceased had left a Will bequeathing his shares to his son and on the basis of the Will his son applied for transmission of the shares in his favour along with no objection letters from other legal heirs of the deceased. The Company sought for a Probate or letter of administration. Company Law Board directed the company to register the transmission without a probate, as all the legal heirs had given no objection.


Similarly, in the present case (Dr. Ashok Cherian vs Itc Limited on 29 April, 2005) also, since the sister of the petitioner is the only other legal heir of the deceased and she has given no objection in transmitting the shares in favour of the petitioner, the Company is not justified in asking for a copy of the Probate, which even otherwise is not necessary in terms of Section 213(2) of the Indian Succession Act. S. Balasubramanian, Chairman, Company Law Board


8. Is Probate of Will necessary for Indian Christians?


In Clarence Pais&Ors. Vs. Union of India- The Supreme Court has recently held that,

Thus a Christian residing in the State of Kerala owning property therein if dies after making a Will, the legatee thereto need not to obtain a probate in terms of Section 213 of the Indian Succession Act before establishing their right, while those residing in other parts of the country are required to do so.




In Kanta Yadav vs. OM Prakash Yadav - In Clarence Pais&Ors. v. Union of India wherein, the validity of Section 213 of the Act was challenged as unconstitutional and discriminatory against the Christians.




Is Probate Necessary for Unregistered Will in Karnataka? The Indian Succession Act, of 1925 has no provision making it compulsory to take a probate order in case of an unregistered will.


However According to the Karnataka Government Under Section 212(2) of the Indian Succession Act, 1925, Hindus, Muslims,etc. are not bound to apply for letters of administration (Probate). It is optionaland not mandatory for these persons to seek probate of the Will. - https://karunadu.karnataka.gov.in/karigr/Documents/Registration%20of%20Probate%20of%20Wills.pdf



9. Conclusion


When a Christian (Roman Catholic) leaves an unregistered Will in favour of his wife, does the Will need to be probated after his death? –


Not required, it is not mandatory to probate the will when it comes to Christians and Muslims as well. Not required in Karnataka as well.


However, it is highly advisable to probate a will to avoid any future complications.


It does not matter whether it is a registered or unregistered will in India as it is not compulsory, if the family wishes to register the said will, they may do so even after the testator’s death.

 
 
 

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