In India, the testamentary laws are governed by the Indian Succession Act, 1925 which provides for a unified code of testamentary succession irrespective of religion of the testator.
However, there are exceptions where the Indian Succession Act, 1925 is not applicable to Muslim inheritance.
While advising Non-Resident Indians (NRI) and Persons of Indian Origins (PIO) in the UK, we have often noticed confusion regarding process of succession in India based on a Will executed in the UK. We have also been approached by English Solicitor firms for advice on these issues.
In this article, we discuss the law and the procedures to be complied with to enforce a foreign Will in India.
How to validate a foreign Will in India?
Section 228 of the Indian Succession Act, 1925 provides the following:
“228. Administration, with copy annexed, of authenticated copy of will proved abroad — When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such copy annexed.”
If a Will is deposited and proved in a foreign court of competent jurisdiction, then the Executor / Trustee of such will can apply for a grant of letters of administration in an Indian court to manage the Indian assets of the Testator. This procedure in India is also referred to as re – sealing of the will or an ancillary probate.
The Courts in India are also known to dispense with the personal appearance of the Executor (based in a foreign jurisdiction) as long as the Executor is being represented in the Court by his / her constituted attorney acting on the basis of a validly executed Power of Attorney.
Procedure for making an application for Letters of Administration.
The Executor (or constituted attorney) is required to sign and verify the application and provide the Court with the following information:
- The time of the testator’s death along with the original death certificate of the testator;
- Court Certified / Exemplified copies of the Probate Order passed by the foreign Court with the Will attached.
- Schedule of assets mentioning the value of assets which are likely to be inherited in India; and
- a statement that the executor (or constituted attorney) making the application is named in the Will.
It is important to note that in scenarios involving a foreign will, Indian courts recognise a will that has been probated by foreign court. A separate will for assets in India is therefore not required following the landmark judgment in Sukumar Banerji v Rajeswari Debi.
In cases where the deceased dies without a will, the court shall grant Letters of Administration to individuals entitled to inherit the deceased’s property. The letters of administration guarantee the administrators being entitled to inherit properties in India with full title, rights and interest as laid down in the case of In The Goods Of Late Syed Fakhrul Abedin before the Patna High Court.
In the scenario that the Executor / Beneficiary chooses to dispose of the inherited property in India and repatriate the sale proceeds, relevant forms and approvals must be obtained from the Reserve Bank of India as dictated under the Foreign Exchange Management Act 1999.
How we can help
If you have any further queries in relation to the above article and advice on the process involved in the repatriation of funds to the UK, please do not hesitate to contact us and we would be happy to assist.
We can be reached either by telephone on 020 7499 0620 or by email at email@example.com.