A petition needs to be filed through a lawyer before the District Judge or High Court for the grant of Probate.
By Rajesh Narain Gupta
The passing away of a loved one can be a traumatic event for anyone. The case becomes especially tragic for a woman when she loses her husband. Indian men have traditionally not bothered to take their wives into confidence as regards property issues. Women also have been traditionally unaware of the monetary value of their spouse’s tangible assets.
However, husbands are realising the importance of legal documentation procedures in facilitating the smooth transfer of property ownership rights to their wives especially with fading away of joint family culture and growth in nuclear families. A Will obliterates the hassles of legal complications while claiming property rights or assets in the event of a husband’s death and ensures financial empowerment of the wife and children.
Writing a Will
The sale of property/assets acquired by a wife under the Will of her deceased husband mandates adhering to certain legal formalities and procedures. Depending on the nature and location of the property, the wife of the deceased person will need to apply for mutation/transfer of property in her name in the records of society/municipal corporation/revenue records. To facilitate this, a copy of the Will is required to be submitted supported by an affidavit and indemnity bond as per the prescribed formats. The No-Objection Certificate (NOC) of other legal heirs comprising son, daughter and mother (if alive) is required in some states and in concerned departments.
Though the mutation and change of ownership based on Will is legally possible, it becomes necessary to furnish the Probate of a Will in most cases to eliminate any possible instance of fraud or objections from any legal heirs of the deceased husband. The Probate of the Will is also required to ensure clean title and ensure compliance with established market practices.
Probate of a Will
A petition needs to be filed through a lawyer before the District Judge or High Court for the grant of Probate. Once the petition is filed, the court issues notices to all legal heirs and schedules the matter for hearing. The beneficiary is required to prove the authenticity of the Will by recording her statement. She also needs to arrange the evidence of attesting witnesses before the court personally or by means of affidavits.
Following the completion of all formalities including putting public notices in newspapers, the court grants probate after considering the documents and evidence on record. The court generally requires the claimant/beneficiary to provide a surety at the time of grant of Probate. In most of the cases, the beneficiary finds it difficult to provide the surety, however, in such cases, the orders of the court need to be complied with.
In cases of property transfer ownerships, protecting the rights of wives of deceased persons from any potential fraud or violation assumes paramount importance. Recognising the absolute right of widowed women to secure their husband’s property, various judicial pronouncements have ruled that a widow will continue to have rights over her former deceased husband’s properties even after remarriage.
It has also been stipulated that the provisions of the repealed Hindu Widows’ Remarriage Act, 1856 were no longer applicable and the provisions of the Hindu Succession Act, 1956, would reign supreme. It has also been stated explicitly that remarriage does not annul the status of the widow as a Class I heir of her deceased husband.
Will is an important document. One should ensure that it is registered with the sub-registrar of assurances and if possible, also video graphed. The High Court of Delhi in the matter of Sayar Kumari vs State, 2009, has accepted video recording as an important piece of evidence to prove the Will. One has to ensure that the witnesses to the Will are credible and would be available to prove the authenticity of the Will. There is no stamp duty payable on Will.
The writer is managing partner, SNG & Partners