Will & Related Matters

A bequest under a Will is, in essence, a gift that is intended to take effect only if the legatee is alive to receive it. As a rule of testamentary construction, if the person named to receive a legacy does not survive the testator, the gift cannot take effect in his favour but it would normally "lapse". This is provided as the general rule in Section 105 of the Indian Succession Act, 1925 ("the Act"), which applies to all testators other than Muslims.

In K.G. Sunil Krishnan v. K.G. Premsankar (2022), the High Court of Kerala clarified the difference in the payment of court fee for a probate petition in Kerala. The court held that whenever an application for probate or letters of administration is filed, it must be accompanied by a valuation statement of the estate in the form set out in Part I of Schedule III of the of the Kerala Court-Fees and Suits Valuation Act, 1959, with the court fee paid under Article 6 of Schedule I.

The Supreme Court, in Parvathi Nairthi (Dead) & Ors. v. Laxmi Nairthy (Dead) Through LRs. & Ors. [2026 INSC 521] reiterated that the mere exclusion of natural legal heirs does not, by itself, make a Will suspicious.

This article titled 'How to Defeat a Plaintiff's Allegation of "Lack of Disposing Mind" in a Will Contest' analyses how a defendant can successfully uphold a Will by leveraging registration, independent witness testimony, and the plaintiff's own admissions.

In Sanjay Sharma @ Sanjay Bhardwaj v. Krishnadhan Khaware and Ors. [2026 INSC 708], the Supreme Court, while considering the limited issue of whether an application for probate was barred by limitation, held that the right to apply for probate is a continuous right that can be exercised at any time so long as the object of the Will survives.

When a probate proceeding is contested, it stands converted into a suit under Section 295 of the Indian Succession Act, 1925, Kerala High Court observed in P. Lakshmikutty Amma & Ors. v. V.K. Indira & Anr.

Proof of a will is not just proving the signature of the testator on the Will and its attestation in terms of Section 63 of the Indian Succession Act; rather it is an exercise to satisfy the Court's conscience that the testator had signed the Will with free will being aware of its contents and after understanding the nature and effect of the dispositions in the Will, observed the Supreme Court in Sardari Lal v. Bishan Dass & Ors [2026 INSC 669].

Probate proceedings are concerned exclusively with the authenticity, legality, and due execution of a Will. Questions relating to title, possession, partition, or rival proprietary claims ordinarily fall outside the jurisdiction of the probate court.

In Lekshmi M. Nair v. Sudhamony Amma C.K. and Others [MANU/KE/2064/2024], the High Court of Kerala observed that the District Court has jurisdiction to grant or revoke probates and letters of administration, without a State Government notification under Section 264 (2) of the Indian Succession Act, 1925.