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Synopsis

The Kerala High Court, on January 6, 2025, ruled that an executor of a Will made by an Indian Christian can claim rights over the deceased's assets without obtaining probate, citing the Kerala amendment to Section 213(2) of the Indian Succession Act.

A Single judge bench comprising Justice C.S.Dias, allowed a writ petition filed by Ambily Jose, wherein the executor of the Will executed by the late Fr. George Valiaveetil, an Indian Christian who passed away on July 8, 2024. The deceased’s Will bequeathed properties and bank deposits in favor of the petitioner and other legatees. After the testator's death, the petitioner approached the Federal Bank Limited, seeking details of the deceased's deposits and their release as per the Will. However, the bank insisted that the petitioner provide a copy of the probated Will to claim the deposits. Arguing that the insistence on probate was unwarranted in light of the Kerala amendment to the Indian Succession Act, the petitioner moved the High Court, terming the bank’s response arbitrary and contrary to settled legal principles.

The petitioner, represented by Advocate John Varghese, argued that under the Kerala amendment to Section 213(2), probate was not required for Wills made by Indian Christians. It was further highlighted that as the Will was registered, the bank’s demand for probate was unjustifiable and in violation of established legal provisions. Contrarily, the bank asserted that requiring probate was a precautionary measure to avoid future liability.

The court analysed the Kerala amendment to Section 213(2), which took effect in 1997 and observed that it explicitly excludes Indian Christians from the requirement of obtaining probate to establish their rights under a Will.

The court confirmed that “The testator was an Indian Christian, and he died after the coming into force of Section 213 of the Succession Act (Kerala Amendment) Act, 1996,” emphasising that the statutory requirement for probate does not apply in such cases.

The court also rejected the bank’s contention that releasing the deposits to the petitioner without probate could expose the bank to potential claims by other parties, terming it “naïve and untenable.”

Pointing to prior judgments, including Lilly George v. Francina James and Kurian @ Jacob v. Chellamma John and Others, where similar issues were deliberated, the court affirmed the applicability of the amendment.

However, to address the bank’s concerns, the court directed the petitioner to execute an indemnity bond, indemnifying the bank against any potential future claims.

Conclusively, the court ordered the respondents to release the deceased’s deposits to the petitioner based on the registered Will within one month. Additionally, it required the petitioner to submit the indemnity bond at the time of release to protect the bank against potential rival claims while setting aside the bank’s earlier demand for a probated Will as unjustified in the instant case.

 

Cause Title: Ambily Jose v. Sub Registrar and Others [WP(C) No. 37711 of 2024]