Probate from a Foreign Country When a Will is executed outside India

The prevalence of individuals holding assets overseas has risen over recent years. In the event of a death an executor will manage how these assets are distributed and, when this involves assets based overseas, the executor will need to provide certain documentation to the authorities in the jurisdiction where the assets are held.

A Will denotes the wishes of the testator regarding movable and immovable property after their death. The time and place is not relevant for the validity of the Will. Even though registration of a Will is not mandatory the validity of unregistered will are often challenged before court of law. A Will does not create any absolute right unless it is probated and the title is executed. The legal heirs of the testator are free to raise any objection regarding the genuinity of the Will before it is executed.

The Indian Succession Act, 1925 (the Act) is intended to consolidate the law applicable to intestate and testamentary succession. Part VI of this Act enumerates the provisions relating to testamentary succession. Under Section 57 of the Act, the provisions of Part VI set out in Schedule III are made applicable, subject to restrictions and modifications to wills and codicils made by Hindus, Buddhists, Sikhs or Jains under certain circumstances.

Section 57(a) and (b) of the Act are specifically applicable with reference to wills executed within India. Section 213 of the Act, on the other hand, prohibits recognition of rights as an executor or legatee under a will without the production of a probate and sets down a rule of evidence and forms a part of the procedural requirement of the law of the forum. In cases which fall under Section 57(a) and (b) of the Act, obtaining of a probate would be necessary if the court is called upon to recognise rights to properties claimed or asserted either as an executor or as a legatee under the will executed in India.

With reference to wills executed outside India, in respect of which a foreign probate has also been obtained, the requirement of Section 213(1) of the Act would be satisfied by obtaining under Section 228(1) of the Act an ancillary probate. Otherwise, the procedural requirement of the lex fori enacted under Section 213(1) of the Act may not be satisfied and if it is only with a view to enable parties claiming under a will executed outside India to make claims with reference to properties situated in India, the procedure under Section 228 of the Act has been prescribed.

If this is not so, then as the probate obtained in respect of a will executed in a foreign country would be operative only within that country, persons entitled to other properties under the will, which are situated outside the country where the will was executed and the probate also was obtained, would be left without any means to assert their rights there to it must also be remembered that Section 228 of the Act is really in the nature of an enabling provision and when read with Section 270 of the Act, permits the obtaining of an ancillary probate. Section 270 of the Act is enacted on the principle that the presence of personal property of the deceased would be sufficient foundation of jurisdiction for purposes of granting probate.

Wills made in other jurisdiction are not automatically enforceable in India. Under the Act, an ancillary probate can be granted to authenticate a foreign will. A foreign will, once proved and deposited in a court of competent jurisdiction, or a properly authenticated copy of the will and letters of administration will be recognised by the Indian Courts. Otherwise, if the Court deems fit then it will take the evidence into account and will examine the petitioner upon oath to ensure the veracity of the will.

An executor or legatee cannot claim their right under the will unless probate or letters of administration of the will are obtained.

Section 213 of the Act is primarily concerned with wills which have been executed in India by the Indian nationals and Section 229 provided for obtaining of a probate and enables the granting of an ancillary probate in the case of foreigners. It also be pointed out that Section 213 of the Act must take in an ancillary probate which can be granted under Section 228 of the Act, as otherwise, Section 213 cannot be construed to contemplate a probate which no court in India can issue as regards a foreign will, which has also been probated by a foreign court.

The grant of probate is a proceeding in rem as has been held by the Supreme Court in Basant Devi v. Ravi Prakash Ram Prasad Jaiswal. If a foreign judgment has seen that the requirement of Section 63 of the Act is followed, it would certainly be conclusive and also binding upon the parties who claim their rights thereunder. The exception is specifically set out in this judgment which has held that such a judgment in rem, including judgment of a foreign Court is binding upon the parties upon the operation of Section 41 of the Indian Evidence Act but only provided those Courts are competent to pronounce the judgment as contemplated in that section. The Court would be competent and its judgment would be conclusive if they followed the law applicable in India. Such a judgment would hold good until the probate granted under such judgment is revoked also under the law in force in India being Section 263 of the Act.

The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents or the Apostille Convention abolished the requirement of diplomatic or consular legalisation for foreign public documents. The present Convention is applicable to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State. For the purposes of the present Convention, the following are deemed to be public documents:

• Documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server.
• Administrative documents.
• Notarial acts.
• Official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures

India, since 2005, is a member of the Hague Convention of October 5, 1961 that abolished the requirement of legalization of foreign public documents. Apostille is acceptable in 105 member-countries of the Convention. An Apostille is a type of attestation in which documents are legalised in a particular format that is acceptable in all nations that belong to this Convention. Apostille is done for personal documents like birth/death/marriage certificates, Affidavits, Power of Attorney, etc. and educational documents like degree, diploma, matriculation and secondary level certificates etc. Any document Apostilled in one member country is acceptable in all the other 104 member-countries, signatory to the referred convention of 1961 thus greatly simplifying the process of attestation by making it needless to get the documents attested in each or for each of the countries separately.