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
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