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The Repealing and Amending Act, 2025 ("Repeal Act") was brought into force on 21 December 2025, pursuant to which, inter alia, Section 213 of the Indian Succession Act, 1925 ("ISA") stands omitted.
Prior to its omission, Section 213(1) of the ISA provided that no right as an executor or legatee could be established under a will unless the will had been duly probated by a court of competent jurisdiction, or letters of administration ("LOA") with the will annexed had been granted. Section 213(2) restricted the application of this requirement to wills specified under Sections 57(a) and 57(b) of the ISA.
Sections 57(a) and (b) refer to wills and codicils made by any Hindu, Buddhist, Sikh or Jaina:
- within the local limits of the ordinary original civil jurisdiction of the High Courts of Calcutta, Madras and Bombay; or
- outside such limits, insofar as they relate to immovable property situated within those jurisdictions.
Consequent to the repeal of Section 213, probate or LOA is no longer mandatorily required in respect of the wills and codicils referred to in Sections 57(a) and (b). Accordingly, rights under such wills may now be asserted without first obtaining probate or LOA.
Our Analysis
While the repeal of Section 213 appears to be intended to remove distinctions based on religion and geographical location, it is foreseeable that practical and legal challenges may arise from the absence of a mandatory probate requirement.
Probate proceedings involve a rigorous judicial scrutiny of the will and serve as conclusive proof of its due execution, authenticity, and status as the testator's final testament. In jurisdictions covered under Sections 57(a) and (b), where immovable properties are often of substantial value, the mandatory requirement of probate historically acted as an important safeguard against forged or fabricated wills and spurious claims.
In practice, several institutions, including co-operative housing societies in Maharashtra, traditionally insist on probate before recognising transfers of ownership pursuant to a will. With the removal of the statutory mandate, there is a real risk that such bodies may be compelled to act on unproven wills, potentially resulting in erroneous transfers. This, in turn, may give rise to avoidable and protracted litigation, as other heirs or legatees may seek to challenge such transfers or seek protective reliefs from courts.
Although the Repeal Act contains a savings clause preserving proceedings initiated prior to its commencement, ambiguity remains regarding the treatment of wills executed by persons who passed away prior to the Repeal Act, where no probate or LOA proceedings had been initiated until the repeal came into force.
Pertinently, the repeal may also encourage greater reliance on alternative protective measures, such as the registration of wills, to mitigate disputes relating to authenticity and execution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
