Probate of Will no longer Mandatory?

The Repealing and Amending Act, 2025 (“Act”) has now even received President’s asset and has been published officially in the Gazette. Among other provisions, the Act has deleted Section 213 of the Indian Succession Act, 1925.

What was the significance of the now deleted section 213 of the Indian Succession Act, 1925?

Under Section 213 of the Indian Succession Act, in certain cases a Will would have to be legally validated through probate (or letters of administration) before an executor or legatee can enforce rights under that Will in court. This requirement applied to Wills made by Hindus, Buddhists, Sikhs, Jains, and Parsis when such Will was executed within the original civil jurisdiction of the High Courts at Calcutta, Madras, or Bombay, or related to immovable property situated in these regions.

This mandate of probate did not apply to Wills made by Muslims or Indian Christians. Thus, many viewed section 213 as being discriminatory.

What does deletion of section 213 mean?

The intention behind deletion of section 213 this amendment is to eliminate discrimination in the law and standardize requirements for all testators, regardless of religion. This means:

🧩 Simpler Legal Enforcement: The amendment is that a Will can be recognized by courts even if they are not probated. This was earlier not legal in the case of Hindus, Buddhists, Sikhs, Jains, and Parsis who were in, or whose properties were situated in, Kolkata, Madras, or Bombay. This will make it easier for executors and beneficiaries to enforce testamentary rights in courts, especially for properties in Mumbai, Chennai, and Kolkata.

⚠️ Risks Still Remain: Even without a mandatory probate process, enforcing a will can still be risky. Probate serves as formal judicial confirmation of a Will’s validity. Its absence means Wills proved without probate might face greater legal challenges in the future since their authenticity hasn’t been conclusively settled by a court.

📌 Voluntary Probate After the Amendment: Although probate will no longer be required in many cases, it will still be available as an optional step. Many estate planners anticipate that obtaining probate voluntarily will remain a useful strategy because it provides judicial certainty and reduces the likelihood of disputes.

Furthermore, it will still be required to be seen if Societies, Banks, Companies or Government Authorities will still ask heirs to produce a Probate in the following cases:

(a)   Societies when one or more persons applies for insertion of their names in share certificate in place of a deceased;

(b)  Banks when one or more persons claims ownership of a bank account and there are no living nominees;

(c)   Companies when one or more persons applies for insertion of their names in the share register in place of a deceased; or

(d)  Government bodies when one or more persons applies to insert their name in the property or revenue records, in place of a deceased.

What Happens to Pending Testamentary Petitions

The provision merely means that probates are not mandatory, but does not mean that heirs/beneficiaries cannot apply for probate if they so desire. Thus, pending Testamentary Petitions will not be effected. Furthermore, the Act includes a savings clause, meaning the repeal of Section 213 will apply only going forward. Any probate actions currently in progress or already granted will not be impacted by the change.

What Happens to Pending Testamentary Suits

Testamentary Petitions which have already been challenged by other heirs will also remain. However, the deletion of this section could possibly mean that an Executor of a Will can still act as an Executor despite pendency of the Suit, unless the heirs challenging the Will obtain an temporary or permanent injunction preventing the Executor from acting as an executor under the Will.

Conclusion

The updated law will reshape how testamentary succession and estate planning are approached in India. Individuals with existing wills, ongoing succession matters, or future estate planning needs should revisit their strategies in light of this change.

The deletion of section 213 could also mean that an Executor can transfer properties without notice to legal heirs, which is something that will have to be curbed.

The Act can be downloaded here:

The Repealing and Amendment Act, 2025.pdf

Download PDF • 419KB

Note: The above article is meant for general information and does not amount to legal advice.