Limitation Period for Applying for Probate of a Will: an Analysis Based on Court Judgments

Limitation Period for Applying for Probate of a Will an Analysis Based on Court Judgments

In a recent case the High Court of Calcutta has examined the question of limitation for applying for probate of a Will and has delivered a judgement on 11.06.2020.

As per the facts of the case, the testator died on 13th June 1993. He had made and signed a Will on 16th April 1989.

The application for probate was filed on 8th September 2014 by the executor named in the Will.  One of the legal heirs applied for rejection of the probate application on the ground that it is barred by Article 137 of the Limitation Act. Article 137 is a residuary clause and provides, for filing of a suit, within three years from the date when the right to sue accrues.

In the present case, it was argued that the right to file accrued on the date when the testator died, i.e. on 13.06.1993. Therefore, the application for probate should have been filed within three years from 13.06.1993.  But the same has been filed in September 2014, i.e. after 21 years without explaining the delay.

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The other party contended that the right to apply for probate accrues only when a challenge is made to the Will, or it is disputed. The time of three years does not run from the date of death of the testator.

The High Court has ruled that Article 137 applies to the cases of application for probate and the time envisaged will be activated once the right is denied, giving rise to a consequent need to assert the right. The right to file accrues when the Will is disputed, or it becomes necessary to apply for probate which may not necessarily be within three years from the date of the deceased’s death. 

The High Court followed the interpretation given to the words “When the right to sue accrues” (as appearing in Article 113 and Article 137 of the Limitation Act) by Hon’ble Supreme Court recently in a case of Shakti Bhog Food Industries Limited. In this case, it was held that Article 113 does not specify happening of a particular event for computing the limitation period. It only refers to the accrual of the cause of action based on which the right to sue would accrue. The period of limitation would begin from the time when the right to sue accrues and not necessarily from the time when the right to sue accrues first.

Recommended reading: Nomination is not a WILL

Applying the same principle in the present case, High Court has held that cause of action in case of probate cannot be interpreted to have occurred only at the time of death of the testator.

The Court further stated that Section 293 of the Indian Succession Act provides for a cooling-off period of expiration of 7 days from the day of the testator’s death before probate of a Will can be granted. There is no outer limit within which an executor has to take out an application for grant of probate.

The Legislature has deliberately provided no endpoint for filing such application. The purpose of probate is to give effect to the Will of the testator. It should not be defeated merely by delay on the part of executor.

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In an application for grant of probate, the applicant claims no right. There is a demand for permission of the court to perform a duty cast by the author of the testament upon the executor concerning the administration of his estate.

Right to file for probate is a continuous right and therefore, Article 137 cannot be construed as limiting the period to three years from the date of death of the testator. If done so, it would frustrate the very object of the law preserving the wishes of a testator.

The decision has made it clear that the period of limitation for matters under Article 137 of the Limitation Act, would begin from the time when the right to sue accrues based on a cause of action which may or may not have occurred at the first point of time.

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Nomination is not a WILL


If you die intestate (without leaving a WILL document), The Natural law of succession will prevail

The Court in present case once again had to decide between Morality and Law and settled that law prevails. The matter before the court was in relation to Relinquishment of Succession Right when Heirs have separated themselves from Deceased for a long time. The Court had to decide whether Absence of the Will still attracts Hindu Succession Act when Heirs had distanced themselves from the life of Deceased for more than 35 years. The situation became more complicated since deceased considered someone else as her nominee.

In the above-mentioned case, the facts are as follows:

  • A woman was living separately from her Husband and Daughter from past 35 Years and died Intestate.
  • From 35 years, the deceased was living with her sister.
  • Deceased was a Central Government Employee and has selected her sister as her nominee.
  • A succession Certificate issued in favor of Husband and Daughter of Deceased.
  • Sister of Deceased appealed against the above order on the ground that Nomination marked her as the owner.
  • Court relying on settled position of Nomination not amounting to Will stated that in absence of Will irrespective of relationship between deceased and heirs, the property still delves into legal heirs as per Hindu Succession Act in case of Intestate Deaths.

The court in this matter settled the following points

  • Nomination does not itself amounts to a Will or marks nominee as an owner.
  • Irrespective of the relation between Parties, provisions of Hindu Succession Act prevails in absence of Will.


The court in its opinion stated that the prevalence of law since distance does not amounts to Breakage of relationship and can even be there because of various other reasons as Employment. Moreover Nomination in Official Records sometime is done as a token of affection and love rather than with the purpose of making someone as a legal heir.

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WILL: Shrouded in Mystery

Judgement on will

There have been numerous cases where the Will of a person has been questioned by the courts. It is not uncommon for the High Court to find it suspicious and dispel the wishes of the testator only to be reversed by the Apex Court. A very similar situation took place in Mahesh Kumar (D) By Lrs. vs Vinod Kumar & Ors on 13 March, 2012. Honorable Justice G.S. Singhvi reversed the judgment given by a single judge in Madhya Pradesh High Court.

Although the apex court did agree with High Court that the will was shrouded in mystery however the Apex Court’s interpretation of will deemed it genuine and gave validity to its execution.  To quote Justice Sanghvi, “The fact that the appellant was present at the time of execution of Will dated 10.2.1992 and that the testator did not give anything to respondent Nos. 1 and 2 from his share in the joint family property are not decisive of the issue relating to genuineness or validity of the Will. The evidence produced by the parties unmistakably show that respondent No. 2 had separated from the family in 1965 after taking his share and respondent No. 1 also got his share in the 2nd partition which took place in 1985.”

The important part to notice here is that while taking into consideration if a will seems to be suspicious, then it is up to the appellate to dispel any suspicion.

The High Court strongly felt that the appellate failed to dispel the suspicion they had and the will was suspicious as even the Apex Court had to go into great depth before over-ruling the judgment.

In and all the most important part of this judgment is the fact that if a reasonable doubt or suspicion has been raised by the court, the burden of proof shall be with the executor of will (who is also the beneficiary).

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Attesting Witness to Appear before the Court for proving the Will

Judgement on the will

A Will is basically a legal declaration of the intention of the person regarding the enjoyment of his properties after his death. According to law, a Will is required to be signed by the testator (the person who has made the Will) or any person in this behalf authorized by him and has to attest by at least two witnesses in the presence of the person who has made the Will and in the presence of each other. Those who attest must have also witnessed the testator putting his signatures or affixing his mark.

The Hon’ble Supreme Court in the Landmark Judgement of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria & Others had held that besides the signature of testator and attesting of Will by witnesses, it is also required that at least one of the two attesting witness should have appeared before the Court and subjected to the due process of Court for proving due execution of the Will.

Thus before a Will can be used as credible evidence in the Court of Law, attesting witness who is alive and capable of giving evidence, has to be necessarily examined before the document required by law to be attested can be used in evidence.

The Apex Court further held that if the witness appearing before the court is only able to prove the attestation of will by him but fails to prove the attestation by the other witness than he has not been able to prove the validity and legality of the Will and the other witness will also have to be produced in the court.

This Judgment is remarkable in the sense that it seeks to reaffirm the well-established law in regard to the Wills. Henceforth not only statutory requirements for proving the Will are to be satisfied but it has to be established beyond any reasonable doubt that it is free from any suspicious circumstances before it can be admitted as evidence in the Court which can be done only if the attesting witnesses appears before the court and opportunity can be afforded to the other party to cross-examine him.

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