Under Mohammedan law: no writing is required to make a Will Valid and no particular form; even of verbal declaration, is necessary as long as intention of the testator is sufficiently ascertained, and though if it is writing it does not require to be signed nor even signature and attestation, But under Mohammedan law a Mohammedan cannot dispose of more than one third of share of his property over which he has power of disposition by will. Bequest in excess of the legally One Third share cannot take effect, unless the heirs do not consent. The remaining Two third portions shall go to his heirs in share prescribed by law.
Probate is defined in Indian Succession Act, as “a copy of Will certified under the sealof a court of competent Jurisdiction with grant of administration to the estateof testator”. This is the official proof of the Will. Application for probate has to be filed under section222, and 276 of Indian Succession Act in the probate division of High Court. The Petition for grant of probate shall also be verified by at least one of the witnesses to the will if procurable. However this condition is recommendatory and not mandatory. Probate will be issued only to the executor appointed in the Will. If there is no provision for appointment of executor in the Will, the court will grant only letter of administration. The Will is considered to be a genuine one after the probate is granted by probate division of High Court. It binds not only the persons, who are the parties, but also others, who are not parties to the probate proceedings.
If the Will is lost or misplaced by accident and if a copy of the Will is available the probate may be granted until original Will is produced. If the Will exists and the possessor refuses to give the to give the will or the possessor is abroad, the court may grant probate on the copy of the draft Will until the original or authenticated will is produced.
Obtaining of probate and letters of administration are mandatory to establish the right as executor or legatee as per those sections. But the application of the sections is restricted. Act specifically exempts Mohammedans and Indian Christians. Indian Christians means a native of India, who is or in good faith claims to be of unmixed Asiatic descent and who professes any form of Christian religion. In case of Hindus, Buddhists, Jains, Sikhs the provision is applicable only to the Wills made after 01.09.1870 within the territories which on the said date were subject to the Lieutenant Governor of Bengal or within the local limits of ordinary original civil jurisdiction of High Courts of Madras or Bombay and even to the Wills made outside those territories, if the immovable properties referred in Will falls within the territories mentioned above. Provision is not applicable to Wills made by Hindus, Buddhists, Sikhs, Jains outside these territories or if the immovable properties referred in will are situated outside these territories. Probate of will is must in Madars, Bombay and Calcutta. In moffusal areas it is optional.
As stated earlier, the probate will be granted only to the executor appointed in the Will. Such appointment may be expressed or by necessary implication. Suppose In the Will if it narrates that ‘A’ shall be the executor, and ‘B’ do not have any interest, then in such circumstance ‘A’ shall be the executor and ‘B’ does not have any interest. If several executors are appointed, the court may grant probate to all of the simultaneously or if it is not possible to grant probate simultaneously it may be granted at different times. In case where probate is granted to several executors and if anyone of the dies, the full representation of testator rests on the surviving executors. If the executor appointed renounces or does not accept to be executor, within the time limited for acceptance, the Will may be probated and letters of administration with a copy of the will annexed may be granted to person, who would be entitled to administration.
The Act provides for various contingencies. If the testator who has made the Will
(a) Does not appoint an executor
(b) Or the appointed executor is legally incapable to act or executor died before the Will is probated.
(c) Or has died after having probated the Will but before carrying out the directions of the testator.
If the author of the Will bequeaths all his properties to a single person, such a person is called universal legatee. After paying all debts, charges and devolvement to legatees, as per the Will anything that remains is called residue. The testator may bestow such residue to a particular person who is called residuary legatee. In certain cases the residuary legatee may die before the properties of the testator are devolved as per will. The representative of the residuary legatee has the same right to administration as that of a residuary legatee.
Re ocation of Probate: The grant of probate may be revoked on following grounds. A) The proceedings to obtain the grant were defective in substance. B) The grant was obtained by fraud, by making false suggestions. C) The grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently.