Repeal Of Section 213 Of The Indian Succession Act – Removal Of Mandatory Probate Requirement

Overview:

The Lok Sabha and the Rajya Sabha have recently passed the Repealing and Amending Bill, 2025 ("Bill"), which abolishes several obsolete enactments and amends specific existing laws. Among the most consequential amendments is the omission of Section 213 of the Indian Succession Act, 1925 ("Succession Act").

The Bill, having been approved by both Houses of Parliament, is presently awaiting Presidential assent and notification in the Official Gazette. Once notified, the amendment will materially alter the legal framework governing testamentary succession in India.

Existing Legal Position: Mandatory Probate under Section 213

Under the current regime, Section 213 of the Succession Act mandates that no right as an executor or legatee can be established in a court of law unless probate (or letters of administration) has been obtained. This mandatory probate requirement applies to Wills made by Hindus, Buddhists, Sikhs, Jains and Parsis where:

• The Will is executed within the original civil jurisdiction of the High Court of Bombay, Madras or Calcutta; or
• The Will is executed outside these jurisdictions but related to immoveable property situated within Mumbai, Chennai or Kolkata

This requirement does not apply to Wills made by Muslims or Indian Christians, thereby resulting in a form of discrimination solely based on the religion of the testator and the geographical location of execution or property.

The Proposed Amendment

The proposed repeal of Section 213 of the Succession Act will result in the dispensation of the statutory requirement of mandatory probate of Wills. To give effect to the omission of Section 213, the Bill also introduces consequential amendments to

(a) Section 3 of the Succession Act, which empowers the State Governments to exempt specified communities from specific provisions; and

b) Section 370 of the Succession Act, which restricts the grant of succession certificates in cases where rights are required to be established through probate or letters of administration.

The Bill also contains a savings clause clarifying that the repeal or amendment shall not affect any right, obligation, liability, or proceedings already acquired, accrued, or incurred. Thus, ongoing probate and testamentary proceedings, as well as already granted probates or letters of administration, are not likely to be affected by the Bill.

Expected Outcomes:

• Simplifying the Process
  The Bill, by eliminating the requirement of mandatory probate, is expected to significantly reduce procedural complexities, delays, and associated costs for beneficiaries and executors. In the absence of a compulsory probate requirement, undisputed Wills may now be acted upon more expeditiously, enabling quicker enforcement of Wills in jurisdictions where probate was previously unavoidable.
• Testamentary Transfers Remain Exposed to Risk
  Notwithstanding the procedural simplification brought about by the amendment, testamentary transfers will continue to remain exposed to risks. In the absence of probate, a will does not receive prior judicial approval, leaving it vulnerable to validity challenges at later stages. This may expose legatees and executors to disputes arising during mutation, transfer or distribution of assets, even years after the death of the testator.
• Strategic Use of Voluntary Probation
  The Bill does not eliminate probate as a legal institution; it merely dilutes the mandatory nature of the requirement. Probate will, however, continue to remain the strongest form of judicial confirmation of a Will's validity and may be strategically invoked to secure certainty and finality in estate administration.

MHCO Comment:

The repeal of Section 213 brings welcome clarity and simplicity to the process of enforcing Wills, particularly in the former Presidency Towns, where probate was earlier unavoidable. At the same time, while the amendment reduces mandatory court intervention, it does not diminish the legal significance of probate, which continues to offer the strongest form of judicial corroboration for the validation of wills. Stakeholders should accordingly reassess their succession planning strategies, balancing procedural efficiency against the need for certainty and risk mitigation. The Bill, however, lacks certain clarity, especially in cases where a Will has been executed years ago and for which probate has not yet been applied for. It also raises questions about whether, in such cases, the property may be alienated now after the repeal.

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