The Indian government earlier this week has abolished 71 obsolete laws and amended 4 existing laws. A major update concerning the Indian Succession Act, 1925 was also made. The government has put an end to the practice of probate or court validation for enforcement of a will. Earlier, wills made by Hindu, Buddhists, Sikhs, Jains and Parsis living in Bombay, Chennai and Kolkata required probate before the will could be enforced. Now, that is no longer necessary.Aishwarya Bedekar, Associate Partner at Solomon & Co, said to ET Wealth Online that the Repealing and Amending Bill, 2025, simply repeals Section 213 of the Indian Succession Act, 1925 thereby dispensing with the mandatory requirement of obtaining Probate before establishing one’s right as an executor. Bedekar says: “However, parties are at liberty to file an application for probate to safeguard themselves and courts are empowered to grant probate to enforce such Wills.”Also read: Mutation entry can’t override real ownership or inheritance rights, says Supreme CourtVishal Gehrana, Partner Designate, Karanjawala & Co. and Advocate-on-Record, Supreme Court of India, said to ET Wealth Online: “….The earlier compulsion to obtain probate merely because a will was executed in Mumbai, Chennai or Kolkata will no longer survive. In that sense, probate will cease to be a statutory gatekeeper for enforcement of wills belonging to Hindus, Buddhists, Sikhs, Jains and Parsis in these cities.”However, it does not mean probate disappears from the legal landscape. According to Gehrana, probate remains the strongest judicial confirmation of a will’s validity and of the executor’s authority. In families where relationships are strained, where the estate includes valuable immovable property, or where the will departs from what heirs might ordinarily expect, probate continues to offer a measure of finality that informal administration cannot. Gherana says: “It answers potential objections once, in court, rather than allowing them to resurface later at the stage of mutation or distribution.”There is also a practical dimension. According to Gehrana, banks, financial institutions, housing societies and revenue authorities often proceed on internal risk policies rather than on fine points of statutory interpretation. Gehrana says: “Many may still insist on probate or a court order before releasing assets. For that reason, while probate will no longer be legally mandatory, it may still be sought as a matter of caution in sensitive estates.”Also read: Tribal daughters can’t inherit ancestral property under Hindu Law, must follow tribal customs: Supreme CourtIs voluntary probate still a smart move?Bijal Ajinkya, Partner at Khaitan & Co, says that although estate administration in Mumbai, Kolkata and Chennai will now proceed in the same manner as the rest of India, one key factor to note is that the mandatory probate requirement for wills in these three erstwhile Presidency Towns often meant that other legal heirs received a notice of the existence of the will at the very outset. Now that probate is no longer mandatory, the executor of a will may commence and even complete distributing the estate in accordance with the will without informing the other legal heirs. Ajinkya says: “This opens up the possibility that the genuineness of the will may be challenged years into the future especially given the fact that families have become more global than ever, and every family member may not be aware of the assets held by the family due to then living outside India.”According to Ajinkya, in order to avoid this risk, it may be advisable for families to shift to alternate modes of succession planning such as the creation of private trusts during their lifetimes, which may be more insulated from legal challenges because unlike a will, a trust is a lifetime transfer which the settlor / author has acted on actively, and is not open to interpretation of the settlor’s intent. Ajinkya says: “Another alternative could be family arrangements where assets are properly distributed to the heirs, though mature heirs is a pre requisite to open up acceptable succession discussions, which may be difficult in India considering emotional status and mental and dependency on heirs for well being at senior generations.”How does this change affect succession planning?According to Gehrana, the immediate impact concerns the removal of a long-standing anomaly. Until now, the same will could attract different procedural consequences depending purely on where it was executed. Gehrana says: “A will made in Mumbai was treated differently from one made in Delhi, even if both were otherwise identical. That distinction, rooted in colonial legislation, has now been done away with. Succession planning therefore becomes simpler and more uniform.”Executors will no longer be forced into probate proceedings as a matter of course, and in uncomplicated, undisputed estates, assets can be transmitted faster and at lower cost. At the same time, the change also shifts the burden of care. Gehrana says: “Where probate is no longer automatic, the quality of the will itself becomes critical. Clear drafting, proper execution, credible witnesses and consistency between the will and nominations or account records assume greater importance.” According to Gehrana, if a will is weak or ambiguous, disputes may not surface immediately but may emerge later, when assets are sought to be transferred. In practical terms, families and advisors will now make a conscious choice. Gehrana says: “In straightforward cases, probate may be avoided. In estates where future disputes are foreseeable, choosing probate at the outset may still be the wiser course.”Also read: Children of second wife also entitled to inherit their late Hindu father’s ancestral property: Odisha High CourtWhat happens to existing will dispute cases in court?Gehrana says that this change (removal of probate) does not resolve disputes that already exist. Gehrana says: “Where probate proceedings are contested, or where allegations of coercion, forgery or lack of testamentary capacity are in issue, those matters will still have to be decided on evidence. The amendment does not retrospectively validate disputed wills.”According to Bedekar, courts will now have to interpret Section 4 of the Repealing and Amending Act which provides that the omission of Section 213 shall not affect any remedy or proceeding in respect of right, title, obligation liability, already acquired, accrued or incurred.Accordingly, the effect of the omission of Section 213 on existing disputes remains to be seen and may vary for different kinds of disputes. Bedekar says: “For instance, disputes touching the validity of Will, will remain within the testamentary jurisdiction whereas disputes against debtors of the deceased will continue to require the executor to obtain proof of representative title i.e., probate, to recover debts of the estate of the deceased.”The law might provide some relief in situations where cases were initiated just because the law earlier made probate compulsory, even when there was no genuine disagreement. Depending on how far along the process is, parties could request appropriate orders once the amendment comes into force. The larger impact is forward-looking. By removing the mandatory requirement of probate, the law is likely to reduce the number of routine, uncontested probate cases that reach courts. Disputed successions will still be litigated, but families with clear and undisputed wills will no longer be compelled into court merely to satisfy an outdated procedural rule.



Source link