Is Probate Compulsory?

A probate for a will is required to be obtained only under circumstances mentioned in Section 213 of Indian Succession Act, 1925. Section 213 is reproduced for ready reference:-

“Section 213 : Right as executor or legatee when established –
(1) No right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
[(2) This section shall not apply in the case of wills made by Mahommedans and shall only apply in the case of wills made by any Hindu Buddhist, Sikh or Jaina where such wills are of the classes specified in ‘Clauses (a) and (b) of Section 57.’]
The above sub-s (2) is substituted, by the Indian Succession, (Amendment) Act 16 of 1962 dated 30 March 1962, by the following :

(2) This section shall not apply in the case of wills made by Mahommedans, and shall only apply -
(i) in the case of wills made by any Hindu, Buddhist, Sikh, or Jaina where such will are of the classes specified in cll (a) and (b) of s 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act 1962 where such will are made within the local limits of the ordinary civil jurisdiction of the High Courts of Calcutta, Madras and Bombay and where such wills are made outside those limits, in so far as they relate to immoveable property situate within those limits.”

Thus it is very clear from the above provision that a probate is required only under following circumstances :

(i) All wills of Hindus etc made on and after 1 September 1870, within the provinces of Bengal, Bihar, Orissa and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay.

(ii) All such wills made outside the territories mentioned in (i) above relating to immovable properties situate within the said territories must also be proved and probate thereof obtained, before any right as executor or legatee can be established.

(iii) Wills other than those in categories (i) and (ii) above made before 1 January 1927, i. e to say, such wills made outside the territories mentioned in (i) above, relating to movable property situate inside or outside the said territories or immovable property situate outside the said territories are not required to be proved or probated [see s 213 (2), infra].

(vi) Where a will is not executed within the territories mentioned in para (i) or the will does not relate to property situate within the territories mentioned in para (ii), sub-s (1) of s 213 is not attracted.

In your case, since the will is executed in Gandhinagar and moveable property is involved such a will does not attract provisions of section 213 of Indian Succession Act, 1925. Therefore such a will is not required to be probated.

2. Since no probate is necessary of the will in the instant case, the will is admissible in evidence even though it is not probated in accordance with Section 213 of Indian Succession Act, 1925.

As far as the second query is concerned, you have not stated who the person acting on the instructions contained in the Will is. If he did not know the testator, he should, in order to protect himself, ask the heirs to swear an affidavit to the effect that:
i) this was the last will made by the deceased;
ii) that the signature is that of the testator; and
iii) the testator was of sound mind when making the will.

If there is any dispute among the heirs about the will e.g. one heir insists that the will is genuine and is the last will of the testator and the other heir or heirs insist that it is not, then the person carrying out the instructions should insist that the will be proved in Court.