Monday, September 27, 2021

WIll Probate in Common Form and in Solemn Form:

WIll Probate in Common Form and in Solemn Form:

In English practice, a testament may be proved in two ways, either in common form or in solemn form. 


When it is sought to be proved in common form, the executor merely presents the Will before the Judge, and without citing the parties interested, produces the proof affidavits of one or more of the attestors to the will.

And the Judge, after satisfying himself on foot of the affidavits that the testament exhibited is true, proceeds to annex his probate and seal it to the Will.

 The grant of probate in common form leads to pernicious results. 

Several cases on the Original Side of the High Court where decades after the grant of the Probate, interested persons have applied for and succeeded in obtaining revocation of the Probate granted on the ground that the Will is ungenuine or had not been executed in a sound disposing state of mind.

But by the time the revocation is sought, most of the contemporaneous evidence relating to the will would have disappeared and the grantee of the probate would have wrought irremediable mischief by acting upon the grant, which whether granted in common form or solemn form operates in rem. 


On the contrary, when the Will is to be proved in solemn form, the widest publicity is given to the proceedings and all parties, who have an interest in the subject-matter of the proceedings, appear in court and furnish valuable contemporaneous evidence which enables the court to render justice. 

The English practice of proof of wills in common form is not only unsuitable for Indian conditions but also contrary to the requirements of the Indian Succession Act.

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