Disclaimer

The Repealing and Amending Bill, 2025: Rethinking Probate under the Indian Succession Act

The Repealing and Amending Bill, 2025, has now been passed by both the Lok Sabha and the Rajya Sabha and awaits Presidential assent and subsequent notification in the Official Gazette. Once brought into force, the Bill introduces a consequential yet understated reform to the Indian Succession Act, 1925 (“Succession Act”), particularly in relation to testamentary succession and estate planning in India. The proposed changes warrant close attention from practitioners and individuals alike.

Existing legal framework: Mandatory probate in limited jurisdictions

Under the current legal position, Section 213 of the Succession Act imposes a restriction on the enforcement of rights by executors or legatees unless probate or letters of administration have been obtained. However, this requirement is not universal in its application.

Mandatory probate applies only to Wills executed by Hindus, Buddhists, Sikhs, Jains and Parsis in the following circumstances:

• where the Will is executed within the original civil jurisdiction of the High Courts of Calcutta, Madras, and Bombay; or
• where the Will is executed outside these jurisdictions but relates to immovable property situated within these territories.

Notably, this statutory requirement does not extend to Wills made by Muslims or Indian Christians. Over time, this distinction—based solely on the religion of the testator—has been criticised as discriminatory and inconsistent with the principle of uniform civil application.

Proposed reform: Omission of Section 213

The Repealing and Amending Bill, 2025 proposes the complete omission of Section 213 of the Succession Act. As per the Statement of Objects and Reasons, the intent behind this amendment is to remove the discriminatory character of the provision and introduce uniformity in the law governing testamentary succession.

Consequential amendments have also been proposed to Sections 213 and 370 of the Succession Act. Section 213, which empowers State Governments to exempt certain communities from the application of specific provisions (including Section 213), is sought to be aligned with the deletion of Section 213. Similarly, Section 370—which bars the grant of succession certificates in cases where rights are required to be proved by probate or letters of administration under Section 213—has been amended to remove references to Section 213 and “probate”. These changes collectively reflect a move towards modernising the statutory framework.

Practical implications of the amendment

1. Procedural simplification Once the amendment comes into force, probate will no longer be a mandatory prerequisite for establishing rights under a Will executed by Hindus, Buddhists, Sikhs, Jains or Parsis—even where the property is situated in Mumbai, Chennai or Kolkata (the former Presidency Towns). This will substantially ease the procedural burden on executors and beneficiaries seeking to enforce testamentary rights before courts.

2. Continuing risks in testamentary transfers While the removal of mandatory probate simplifies enforcement, it does not eliminate the inherent risks associated with testamentary succession. Probate proceedings serve an important evidentiary and adjudicatory function: they involve judicial scrutiny of the Will’s authenticity, execution, and validity. In the absence of probate, a Will remains susceptible to challenge, potentially long after the estate has been distributed, thereby exposing beneficiaries to prolonged litigation and uncertainty.

3. Voluntary probate as a strategic safeguard Despite the deletion of the statutory mandate, obtaining probate voluntarily will continue to be a prudent and strategically sound choice in many cases. A probated Will carries judicial affirmation and offers a strong shield against future disputes. For high-value estates, contentious family structures, or commercially significant assets, probate remains an effective mechanism to secure finality and legal certainty.

4. Prospective operation of the amendment The Bill contains a savings clause clarifying that the repeal or amendment of any enactment will not affect rights, obligations or liabilities already accrued or incurred. This indicates that the changes will operate prospectively. Accordingly, ongoing probate proceedings and probates already granted will remain unaffected by the amendment.

Conclusion

The proposed omission of Section 213 marks a significant shift in India’s testamentary law, particularly for estates connected to the former Presidency Towns. While the reform addresses long-standing concerns of discrimination and procedural rigidity, it simultaneously places greater responsibility on testators and beneficiaries to assess risk and adopt appropriate estate-planning strategies. In practice, probate may cease to be compulsory—but it is unlikely to lose its relevance.