Probate of Will no longer Mandatory?

The Repealing and Amending Act, 2025 (“Act”) has now received the President’s assent and has been published in the Official 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 this amendment is to remove discrimination from the law and bring consistency for all testators, regardless of religion. This means:

🧩 Simpler Legal Enforcement: In practical terms, a Will can now be recognized by courts even without being probated. This was previously not permitted for Hindus, Buddhists, Sikhs, Jains, and Parsis who were in, or whose properties were situated in, Kolkata, Madras, or Bombay. This makes it easier for executors and beneficiaries to enforce testamentary rights, especially for properties in Mumbai, Chennai, and Kolkata.

⚠️ Risks Still Remain: That said, enforcing a Will without probate still carries risk. Probate provides 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. Most estate planners expect voluntary probate to remain worthwhile because it provides judicial certainty and reduces the likelihood of disputes.

It remains to be seen whether 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 probate is not mandatory. It does not mean that heirs or beneficiaries cannot apply for probate if they so desire. Pending Testamentary Petitions will not be affected. The Act also includes a savings clause, so the repeal of Section 213 applies only going forward. Any probate actions currently in progress, or already granted, will not be affected 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 a temporary or permanent injunction preventing the Executor from acting as 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:

Related reading

What Hindu Law Says About Ancestral vs Self-Acquired Property · Your Loved Ones Will Thank You for the Will You Write Today

Vikrant D. Shetty | Vikrant D. Shetty leads the Succession and Probate Law Practice at Vikrant D. Shetty & Associates, Advocates & Solicitors. In Mumbai, probate of a will is mandatory for a wide class of testators before an executor or beneficiary can act on a will, and the process involves the testamentary jurisdiction of the Bombay High Court. The firm advises and represents executors, beneficiaries, and claimants in probate applications, contested probate proceedings, and letters of administration, as well as in disputes over the validity of wills.

Related reading: Your Loved Ones Will Thank You for the Will You Write Today.

This article is for general informational purposes only and does not constitute legal advice. For advice specific to your situation, please consult a qualified advocate.