If an Executor to a Will fails his duty, the beneficiaries/legatees to that Will may intervene.

In a recent judgment, the Delhi High Court, held that in case of a petition for probate of a Will, if the executor fails in his duty, any of those whom he represents are entitled to intervene and carry on the proceeding with a formal modification that the prayer in that probate petition be read for letters of administration with the Will so annexed.

The said ruling was delivered in the matter of Preethi Swaminathan v. GNCTD & Ors., TEST CASE No. 11 of 2018 decided on 18.07.2018.

Challenge:

The Respondent no. 3/Applicant filed his/her application under Order 7 Rule 11 of Civil Procedure Code or CPC for the rejection of this probate petition. One of the main grounds taken in the same application was that only an executor can seek a probate of Will qua which he or she is appointed under Section 222 of Indian Succession Act, 1925. In the present case, the Petitioner is not the executor of the Will. The Respondent No. 4, being the executor appointed by the Testator, had renounced his rights to execute the will vide letter dated 07.04.2015. The Hon’ble Court had to decide whether the present probate petition filed under Section 276 of the Succession Act, 1925 by legatees/beneficiaries of the Will was a proper one.

Held:

The Petitioner prayed orally that the present petition may be directed to be converted into letters of administration as the executor had refused to act. The Hon’ble Court observed that both proceedings, probate and letters of administration, are similar in nature as the essence of both proceedings is the same and they relate to ascertainment of genuineness and authenticity of Will. The present probate petition was held to be read in consonance with Sections 229 and 230 read with Section 232 of Indian Succession Act, 1925. Therefore, the Application of Respondent No. 3 was dismissed.