Removal of the mandatory probate requirement under the Indian Succession Act

Partner: Tanmay Patnaik, Counsel: Raj Chheda, Associate: Sidharth Rathore

The Repealing and Amending Bill, 2025¹ has been passed by both the Lok Sabha and the Rajya Sabha and is presently awaiting Presidential assent and notification in the Official Gazette. Once notified, the amendments to the Indian Succession Act, 1925 (Succession Act) carry significant implications for testamentary succession and estate planning in India and merit close attention.

At present, Section 213 of the Succession Act prescribes 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 for certain Wills. This requirement of mandatory probate applies to Wills made by Hindus, Buddhists, Sikhs, Jains, and Parsis under specific conditions. These conditions are:

Importantly, this provision does not apply to Wills made by Muslims or Indian Christians, creating a discrimination based on the testator’s religion.

The Bill proposes to omit Section 213 of the Succession Act in its entirety. The Statement of Objects and Reasons explains that this amendment seeks to create uniformity and remove the discriminatory nature of the existing provision. Consequential amendments are also proposed to Section 3 and Section 370 of the Succession Act to align with the omission of Section 213. Section 3 empowers the State Governments to exempt any sect or tribe in the State from certain provisions of the Succession Act, including Section 213. Section 370 prohibits the grant of succession certificates for any debt or security to which a right must be proved by letters of administration or probate under Sections 212 and 213. The proposed amendments remove references to Section 213 and ‘probate’ from these provisions, alongside other changes to modernise the law.

The removal of religion-based distinctions in the application of probate requirements is a welcome change. In January 2024, our Partner, Tanmay Patnaik, had formally petitioned the Rajya Sabha to amend certain provisions (including Section 213) of the Succession Act to, among other things, remove the discriminatory linkage between mandatory probate and the religion of the testator. Although the Rajya Sabha had then indicated that these issues would be considered as part of the proposed Uniform Civil Code, the present amendment reflects that the legislature has proactively addressed religious discrimination within the current legal regime.

The amendments to the Succession Act will materially alter the landscape of testamentary succession in India. Stakeholders with existing Wills, estate planning structures, and ongoing succession matters, as well as those contemplating succession planning, should carefully reassess their strategies in light of these developments.

[1] Available at: https://prsindia.org/files/bills_acts/bills_parliament/2025/Repealing_And_Amending_Bill,2025.pdf 

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