Analysis of impact of removal of mandatory probate provision

Introduction:

On 20 December 2025, the Repealing and Amending Act, 2025 received the assent of the President of India and came into force. Although the stated legislative intent of the Act was to repeal obsolete and spent enactments, one of its most significant substantive consequences in the domain of private succession planning particularly for Hindus, Buddhists, Sikhs, Jains and Parsis has been the omission of Section 213 of the Indian Succession Act, 1925.

The omission of Section 213 fundamentally alters the legal position governing probate in India, especially in the erstwhile Presidency Towns of Mumbai, Chennai and Kolkata, where probate was historically compulsory. For several decades, this provision operated as a jurisdiction-specific procedural barrier, often compelling even uncontested estates to undergo lengthy probate proceedings. The amendment therefore signifies a conscious legislative shift from a rigid, court-driven succession regime towards a more facilitative framework, while consciously retaining judicial remedies in cases where adjudication is genuinely required.

Concept and Juridical Function of Probate:

Probate is a formal judicial certification issued by a competent court confirming that a document propounded as the Will of a deceased person is genuine and valid, the right of the legatee is affirmed by the court and that the executor named therein is legally authorised to administer the estate. The process of granting probate is not mechanical; it involves scrutiny of the execution of the Will, verification of testamentary capacity, compliance with attestation requirements, and issuance of notice to persons having a potential interest in the estate.

Probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such. Thus the legal significance of probate is expressly reinforced by Section 227 of the Indian Succession Act, 1925, which accords probate a conclusive character as to the representative title of the executor. This conclusive effect historically distinguished probate from other modes of proving testamentary succession and provided executors and third parties with a high degree of legal certainty.

From a practical standpoint, probate served as a risk-mitigation tool. Particularly in metropolitan cities where immovable property values are substantial, probate ensured that devolution of property took place under judicial supervision, thereby reducing the scope for later challenges based on allegations of fraud, coercion, suppression of later Wills or competing claims by heirs.

Registration of Wills is not Substitute for Probate:

After 20 December 2025, it is necessary to clarify a recurring misconception: registration of a Will does not replace probate. Under the Registration Act, 1908, registration of a Will is optional and does not alter the substantive rights flowing from the Will. Registration merely adds to the evidentiary credibility of the document by recording its execution before a registering authority.

Registration does not render a Will conclusive, nor does it prevent challenges on grounds such as lack of testamentary capacity, undue influence, coercion or fraud. Probate, where obtained, continues to stand on a different footing altogether, as it represents a judicial determination following notice to interested parties. Accordingly, even though probate is no longer mandatory, registration of a Will cannot be treated as its legal equivalent, and parties relying on registered Wills must still be prepared to prove their validity if disputed.

Statutory Position Prior to 20 December 2025:

Prior to 20 December 2025, Section 213 of the Indian Succession Act, 1925, read with Section 57, imposed a statutory bar on establishing rights as an executor or legatee in any court unless probate or letters of administration with the Will annexed had been obtained from a competent court. The bar was procedural in nature but absolute in its operation within its limited field.

The mandatory probate regime applied where:

• The testator belonged to the Hindu, Buddhist, Sikh, Jain or Parsi communities; and
• The Will was executed within, or related to immovable property situated within, the erstwhile Presidency Towns of Bombay (Mumbai), Madras (Chennai) and Calcutta (Kolkata).

Muslims and Christians were excluded from this requirement, as their testamentary succession followed distinct statutory or personal law regimes. This selective application resulted in a long recognised anomaly whereby estates of identical nature were subjected to entirely different procedural burdens depending solely on the situs of property. Over time, this led to criticism that the provision had outlived its original rationale and had become a source of delay, expense and avoidable litigation.

Legal Consequence of the Omission of Section 213:

With effect from 20 December 2025, Section 213 stands omitted by virtue of the Repealing and Amending Act, 2025. The immediate legal consequence of this omission is that obtaining probate is no longer a statutory pre-condition for an executor or legatee to establish or enforce rights under a Will, even in Mumbai, Chennai and Kolkata.

It is important to emphasise that this omission does not dismantle the broader testamentary framework under the Indian Succession Act. Provisions relating to probate, letters of administration and succession certificates remain intact. The legislative intent is not to discourage probate, but to remove compulsion. Probate is now positioned as a discretionary legal remedy, to be adopted where circumstances such as complexity, value of the estate, likelihood of dispute or need for conclusive determination justify judicial intervention.

Transitional Issues: Pending Proceedings and Pre-Repeal Deaths:

The Repealing and Amending Act, 2025 expressly safeguards actions already taken and rights/obligations already acquired. Consequently, probate proceedings that were pending as on 20 December 2025 do not automatically abate. The Act does not expressly clarify whether executors in uncontested matters can withdraw pending probate applications as a matter of right, and this question is likely to be addressed through judicial interpretation.

Where a testator died prior to 20 December 2025 and no probate proceedings had been initiated or concluded, there is a strong legal basis to contend that beneficiaries may now rely on the Will without being compelled to obtain probate, given that Section 213 was procedural in nature. However, this position is not free from doubt and may still be tested before courts, particularly in cases where third-party interests are involved or where the Will itself is disputed.

Advantages of the Amended Regime:

The omission of Section 213 brings tangible relief to a large section of the population. It substantially reduces the time and cost associated with administering straightforward and uncontested estates and eliminate a historically unequal geographic distinction that bore no relation to the substantive validity of a Will.

From an estate-planning perspective, the amendment facilitates quicker transmission of assets, particularly immovable property, and reduces the emotional and financial burden on families during an already sensitive period. It also has the institutional benefit of reducing congestion in probate courts, enabling judicial resources to be focused on genuinely contentious succession disputes.

Residual Ambiguities and Risk Considerations:

Despite its advantages, the repeal introduces certain practical uncertainties. Indian law does not mandate registration, stamping or notarisation of Wills. In the absence of compulsory probate, concerns relating to authenticity, evidentiary sufficiency and competing claims may become more pronounced, especially in high-value estates.

There is also uncertainty regarding the evidentiary threshold that courts, registrars and third parties may apply while evaluating testamentary claims in the absence of probate. This may result in increased reliance on affidavits, indemnities, legal opinions and, in some cases, declaratory civil proceedings to secure or protect title.

Role of Cooperative Housing Societies, Banks and Authorities Post-Repeal:

Historically, cooperative housing societies, registration authorities for immovable properties and financial institutions insisted on probate or letters of administration as a condition precedent for effecting transmission or mutation of property. After 20 December 2025, the statutory foundation for such insistence has been removed.

These bodies will now need to recalibrate their internal policies and documentation requirements, often relying on alternative evidence such as succession certificates (where applicable), legal heir affidavits and indemnities. Until uniform administrative directions are issued, some degree of inconsistency in institutional practice is inevitable.

Mutation and Revenue Entries after the Repeal:

Mutation and revenue records continue to serve administrative and fiscal purposes. With effect from 20 December 2025, authorities can no longer insist on probate as a statutory requirement for effecting mutation on the basis of a Will.

However, mutation entries whether based on a Will with or without probate do not amount to a final determination of ownership. They remain subject to adjudication by civil courts in the event of disputes and must be treated as provisional, reflecting possession or administrative recognition rather than conclusive title.

Estate Planning and Drafting Considerations:

In the post 20 December 2025 regime, meticulous drafting of Wills assumes heightened importance. Compliance with execution and attestation requirements under Section 63 of the Indian Succession Act, 1925, clarity of testamentary intent and availability of corroborative documentation will be critical to ensure enforceability in the absence of probate.

In estates involving significant value, complex family structures or potential for dispute, voluntary probate may still be advisable as a strategic safeguard to achieve certainty and finality.

Conclusion:

The omission of Section 213 of the Indian Succession Act, 1925, with effect from 20 December 2025, represents a decisive structural shift in Indian testamentary law. Probate is no longer compulsory, but it remains legally relevant and strategically significant.

While the amendment simplifies succession for uncontested estates, its long-term impact will depend on evolving judicial interpretation and administrative practice. Until such clarity emerges, prudent legal advice, robust documentation and informed estate planning will remain indispensable. Probate may no longer be mandatory, but in appropriate cases, it will continue to function as an important legal safeguard.