Execution of Foreign Will in India

According to the 2020 UN reports, around 18 million Indians are living abroad. In this increasing globalizing scenario, individuals have assets and investments spread across multiple countries, including a sizeable amount of investment in India.

Often, it is found out that the legal heirs are provided with no proper instructions on these assets or their transfer to the intended beneficiary after the death of a person. Lack of proper awareness of these assets by the legal heirs result in unwanted claims, speculations, and disputes within the legal heirs and other family members. To curb this, it is essential for one to leave a properly drafted Will in their lifetime as there is no possibility of correcting any errors after the death of a person.

A Will may be used to cover assets owned across varying territorial jurisdictions, just as a Will executed in one place can cover assets situated in another. If a person owns assets in India, a Will can be either executed in India or outside India. A Will executed outside of India is known as a Foreign Will.

It is essential to learn about the legal implications and procedures involved in executing a foreign Will in India to ensure that the wishes of the deceased are honoured in compliance with Indian laws.

Foreign Will

A Will created and executed outside India in accordance with the legal requirements of the country where in which the Will has been created is known as Foreign Will. A foreign Will generally consists of the assets situated in the foreign land, and may also include the assets situated in India, necessitating its execution with the Indian laws.

Understanding the legal framework in India

For executing a foreign Will in India, the provisions under the Indian Succession Act, 1925, should be satisfied.

  • The executor of the Will or any of the beneficiary of the Will must apply for a probate before the court in India. 
  • The application must include the original Will, any documents received from the foreign court or institutions authenticating the validity of the Will, and a petition containing the necessity for execution in India.
  • The authentication of the foreign Will is done by the relevant foreign court. The certified copy received from the court must be apostilled or endorsed by the consular office to validate their authenticity for use in India. 
  • The apostilled Will is then examined by the Indian court along with the probate application submitted. The court issued notices for any kin or interested parties an opportunity to contest the Will if necessary.
  • If no objections are received and the court is satisfied with the validity of the Will, the probate is granted and the executor of the Will can distribute or manage the Indian assets as instructed in the Will. 

As the legal process associated with respect to receiving a probate involves significant time and cost. It is recommended to create sperate Wills complying the legal requirements of the country where the assets are situated. This ensures smooth management and distribution of the assets regardless of the geographical constraints.

Disclaimer: The views / the analysis contained therein do not constitute a legal opinion and is not intended to be an advice. Readers of this document are advised to seek their own professional advice before taking any course of action or decision, based on this document.

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