Is Probate of a Will Necessary?

Although this depends on state to state. In certain states it is not mandatory. Is Probate of a Will Necessary? Yes it is advisable to do so. Probate only declares whether a will is genuine or not , if it is genuine probate will be granted.

What is Probate of a Will?

One may file a Petition under Section 276 of the Indian Succession Act, 1925 for grant of Letter of Probate in respect of the last Will of  the testator.

How does one establish due execution of will ?

Section 63 of Indian Succession Act, 1925 provides for the substantive law on Execution of Unprivileged Wills. Section 63 (a) & (b) of the Indian Succession Act, 1925 provides the requisites of a valid Will. Most importantly it states the  testator must affix his signature on the Will and it shall appear that it was intended thereby to give effect to the writing as a will.

Number of witnesses required in execution of a will

Further, Section 63(c) of the Indian Succession Act, 1925 provides that a Will must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.

How to prove due execution of will?

•  Thus, to prove the valid execution of unprivileged wills, it is apposite to establish that –
  firstly, the Will was duly singed by the testator or bears the affixation of his Mark;
• secondly, the Mark so affixed or the signatures of the testator was so placed that it appears that it was indented to be executed by the Testator in the manner as specified and with a dispensing mind free from all extraneous influences;
• thirdly, it must be attested by two or more witnesses, each of whom should have seen the testator sign or put his mark on the Will. The Will must be signed by the witnesses in the presence of the testator, but it is not necessary that more than one witness should be present at the same time
•  Reference to TEST.CAS. 12/2018 SH. NIKHIL SEHGAL   versus STATE (NCT OF DELHI) [N  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI Date of decision:13th May, 2024]

Conclusion for Is Probate of a Will Necessary?

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