Probate No Longer Mandatory To Establish Rights Under A Will Following 2025 Amendment To Indian Succession Act: J&K High Court

"In view of the aforesaid development, the requirement of obtaining the probate of a Will before claiming right under a Will is not mandated in law." High Court of Jammu, Kashmir & Ladakh, in a ruling dated September 2, 2026, has clarified that the omission of Section 213 of the Indian Succession Act, 1925, via the 2025 amendment, has dispensed with the requirement of obtaining probate to establish rights as an executor or legatee.

A bench presided over by Justice Sanjay Dhar observed that the refusal by revenue authorities to attest a mutation based on a Will due to the absence of probate is legally unsustainable.

The petitioner, Rakesh Kumar, challenged an order passed by Respondent No. 3 (Tehsildar Ghagwal) dated July 31, 2026, which had rejected his application for the attestation of Mutation of Inheritance. The authority had refused to acknowledge the Will in the petitioner’s favor, citing the absence of a probate as a ground for rejection. The petitioner subsequently moved the High Court seeking to set aside this order.

The central legal question before the Court was whether the requirement of obtaining probate under the unamended Section 213 of the Indian Succession Act remains a prerequisite for claiming rights under a Will following the legislative changes in 2025. The Court was further required to determine if revenue authorities could refuse the attestation of mutation solely on the ground of the absence of such probate.

Legislative Shift Regarding Probate

The Court noted that prior to the 2025 amendment, Section 213 of the Indian Succession Act, 1925, strictly mandated that no right as an executor or legatee could be established in any Court of Justice unless probate or letters of administration had been granted. However, the Court emphasized that the legal landscape has undergone a fundamental change with the enactment of Act No. 39 of 2025.

"Vide Act No. 39 of 2025, the Indian Succession Act, 1925 stands amended and section 213 of the said Act has been omitted."

Absence Of Mandate To Obtain Probate

The Bench held that because Section 213 has been omitted from the statute book, the earlier legal hurdle of obtaining probate has been effectively removed. Consequently, any administrative or judicial refusal to recognize a Will on the basis of a missing probate is now contrary to the prevailing law.

"Therefore, the action of the respondent No. 3 in refusing to consider the case of the petitioner for attestation of Mutation of Inheritance, on the basis of a Will in his favour, is not sustainable in law."

Directions Issued To Revenue Authority

Finding merit in the petitioner's challenge, the Court set aside the impugned order of rejection. The Tehsildar (Respondent No. 3) has been directed to reconsider the petitioner's case for the attestation of Mutation of Inheritance in accordance with the current legal position. The Court has mandated that this exercise be completed within a period of one month from the date the order is served.

Outcome of the Ruling

By clarifying the impact of the 2025 amendment, the High Court has streamlined the process for legatees to assert their rights under a Will without being subjected to the cumbersome procedural requirement of seeking probate, which is no longer mandated under the Act.

Date of Decision: 02 September 2026