The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the following Q&A which was published by the Mint Newspaper on 13th January, 2021 and the online edition of the same can be found here.
My late mother, by way of a will, transferred her residential flat in Mumbai to my late father. The managing committee (MC) wanted my father to probate the will. The deputy registrar (during my late father’s lifetime) gave written orders that since my mother’s will is unchallenged, no probate was required. However, since the MC insisted, we approached the high court (after my dad passed away) where it was mentioned that an undisputed will needs no probate. My late father made a nomination mentioning me, my sister, my wife and two sons. My sister and I, the legal heirs, entered into a family agreement, wherein she released her right to the flat in my favour. Now, the MC is again asking for a probate of the will. What should I do next?
Obtaining probate is compulsory for wills which contain immovable properties situated in Mumbai. Do note that a probate converts into a civil suit in the event of a challenge at the application stage. The challenge can only be raised once a probate application has been filed. After an application has been made, a notice is sent from the court to all the legal heirs and the testator’s nearest kin. A newspaper publication is also made to raise any objections. If no objections are raised and the court finds the conditions under which the will was drafted and registered favourable, then the probate is granted. Accordingly, the assertion that an “unchallenged will” requires no probate is technically incorrect as filing for probate is the preliminary or foundational step.
In our opinion, the MC of the society is within its rights to ask you to seek probate of the will. We are not commenting on the merits of the family agreement, as the basis of your interests in the property would depend on the outcome of the probate process. We would recommend that an appropriate probate application should be filed at the earliest. The process of an undisputed grant of probate ordinarily takes a year or so, but the timelines are likely to change given the pandemic.