Executing A Foreign Will in India

Wills are drafted by utmost caution to ensure there are no issues in the future between the beneficiaries, as nothing can be changed in a Will after the testator (the person who has written the Will ) passes away. When it comes to foreign Wills, it has not specifically been defined under any laws in India.

A Will as per the Indian Succession Act, 1925 means the legal declaration of the intention of the testator with respect to their property which they desire to be carried into effect after their death.

A foreign Will may be regarded as a Will executed outside the territorial jurisdiction of India. Such a foreign Will may be executed by an NRI, PIO or even a foreigner with respect to their assets, whether movable or immovable situated in India.

For execution of a foreign Will in India, reference may be made to the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions (‘Hague Convention’).

Provisions Under Hague Convention

Article 1 of the Hague Convention lays down certain prerequisites for a testamentary disposition to be valid, which inter alia includes compliance with the internal law of the place where the immovable assets are situated. As per the Convention, a testamentary disposition shall be considered valid if it adheres to the internal laws of either:

• The place where the testator drafted it.
• The nationality possessed by the testator.
• The place where the testator had their residence.
• The place where the testator had their habitual residence.
• With respect to the immovable asset, the place where the asset is located.

The Convention helps testators dispose of all their heritage within a single Will, even if the assets of their heritage are located in different states or countries.

Steps to Execute a Foreign Will in India

For executing a Foreign Will in India, the below-mentioned procedure must be opted.

• Obtaining the probated copy of Will from the Foreign Court: In order to execute a foreign Will in India, it is necessary that the Will should be probated from the foreign court, where the same was written. Probate is a procedure wherein the executor mentioned under the Will approaches the Court of competent jurisdiction to get the same validated/authenticated before any assets can be dealt with, as mentioned in the Will. Once the Will is probated it gets a legal recognition about its existence.
• Apostillization of the Probated Will: In order to file for Ancillary Probate in India, the following documents are required which should be apostilled/notarized in the foreign country:

                       - The Probate orders passed by the foreign court.

• Grant of Ancillary Probate: On receipt of the original documents, a petition for grant of Ancillary Probate is filed in India where the majority of the assets of the testator are located. The said application must be submitted along with the authenticated copy of the Will and the Final Order obtained from the Foreign Court. The said petition must necessarily be filed before the court of competent jurisdiction in India within 03 years from the grant of a Probate by the Foreign Court.

• Like a usual probate petition, application for obtaining an Ancillary Probate can be challenged by the legal heirs and other interested parties. This is based on the well-established principle that a foreign judgment would not be conclusive if it refuses to recognize the applicable law of India or is in breach of any law in force in India.

Note: Courts in India have refused to grant ancillary probate in cases where the Court was of the opinion that the foreign court had no jurisdiction to grant probate of the Will or if the probate was obtained by fraud/misrepresentation.

• Alternatively, an application for obtaining Letters of Administration u/s 228 of Indian Succession Act, 1925 can be filed in a court of competent jurisdiction in India.
• Upon the receipt of the abovementioned ancillary probate or Letters of Administration, as the case may be, the movable/immovable assets can be dealt with by the beneficiary or the executor named in such Foreign Will.

Conclusion

It is imperative to keep the various aspects mentioned above in mind when drafting and executing a foreign Will in India. The Will must comply with the laws of both India and the country where the Will was drafted to ensure no complications arise in the future. If the testator is not alive when the Will is executed, the successors will have to resolve issues through Court decisions.


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