Will ex­e­cuted abroad for In­dian prop­erty?

Es­tate of the de­ceased can only be ad­min­is­tered af­ter grant of pro­bate or let­ters of ad­min­is­tra­tion by In­dian courts

HT Estates - - HTESTATES - Sunil Tyagi

The pre­vi­ous col­umn had dealt with en­force­ment of wills that are ex­e­cuted in In­dia and per­tain to prop­er­ties lo­cated within the coun­try. In sit­u­a­tions where it is com­pul­sory to ob­tain pro­bate or let­ters of ad­min­is­tra­tion as per re­quire­ments un­der the In­dian Suc­ces­sion Act, the es­tate of the de­ceased can only be ad­min­is­tered af­ter such grant of pro­bate or let­ters of ad­min­is­tra­tion by In­dian courts.

This part of the se­ries deals with cases where the de­ceased has ex­e­cuted his/her will out­side In­dia, set­ting out in­her­i­tance of prop­er­ties that are lo­cat­ed­within In­dia. When a will has been proved and de­posited in a for­eign court, and a prop­erly au­then­ti­cated copy of the will is pro­duced in an In­dian court, the lat­ter may grant let­ters of ad­min­is­tra­tion or an­cil­lary pro- bate. In such cases, a pe­ti­tion is re­quired to be filed for grant of let­ters of ad­min­is­tra­tion/ an­cil­lary pro­bate by In­dian courts.

Fil­ing a pe­ti­tion for grant of an­cil­lary pro­bate is of im­mense im­por­tance be­cause do­ing so en­ables ad­min­is­tra­tion of the prop­er­ties of the de­ceased which are lo­cated within In­dia. The ob­ject of fil­ing this pe­ti­tion is to dis­pense with the need for pro­duc­ing the orig­i­nal will in In­dian courts, where the will in ques­tion has al­ready been de­posited in a for­eign court. For in­stance, pro­bate courts in Eng­land re­tain ev­ery orig­i­nal will for which pro­bate has been granted by it.

Once an In­dian court ac­cepts the grant of pro­bate by the for­eign court as valid, the for­eign pro­bate forms the ba­sis for the grant of an­cil­lary pro­bate in In­dia. How­ever, if In­dian courts con­sider that there is a ques­tion to be de­cided re­lat­ing to the va­lid­ity of the will, the In­dian court may try such ques­tions be­fore per­mit­ting ad­min­is­tra­tion of the prop­er­ties of the de­ceased that are lo­cated in In­dia.

For in­stance, in the case of Lila Ku­mari and oth­ers vs Laxmi Devi, the Pun­jab and Haryana High Court de­ter­mined whether or not pro­bate of will granted by Ox­ford High Court in Eng­land could be re­opened by the courts in In­dia. In this case, the High Court ob­served that courts in In­dia are em­pow­ered to ex­am­ine and re­con­sider judg­ments of a for­eign court if such judg­ments have le­gal in­fir­mi­ties.

For in­stance, pro­bate granted by a for­eign court which has been ob­tained by means of fraud or col­lu­sion of the par­ties, may in­deed be chal­lenged in the In­dian court. Such for­eign judg­ment (in­clud­ing for­eign pro­bate) shall not be con­sid­ered as bind­ing on In­dian courts nor will it be en­force­able in In­dia.

In or­der to ef­fec­tively ad­min­is­ter the prop­er­ties of the de­ceased that are lo­cated within In­dia, it is im­por­tant to bear in mind that pro­bate granted by for­eign courts is also sub­se­quently to be duly recog­nised and up­held by com­pe­tent courts in In­dia.

The au­thor is se­nior part­ner at Zeus Law, a cor­po­rate com­mer­cial law firm. One of its ar­eas of spe­cial­i­sa­tion is real es­tate trans­ac­tional and lit­i­ga­tion work. If you have any queries, email us at ht­es­tates@ hin­dus­tan­times. com or ht@ zeus.firm.in


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