A Will or testament is a legal declaration by which a person i.e the Testator, names one or more persons as the executor to manage his/her estate and provides for transfer of his/her property after his death. A Will is prepared during the lifetime of the person but comes into existence after his demise. A Will declares the testator’s wishes regarding the distribution of his assets and possessions after his demise. It should be made by the testator in sound disposing mind and without any coercion or undue influence from any person.
A Foreign Will is hence a Will which is executed outside India, by an NRI, PIO or a foreigner with respect to his/her properties situated in India. Any NRI, PIO, or a foreigner possessing estates in India is not mandatorily required to create an Indian Will for his Indian assets and can have a foreign Will for all his assets including the ones in India.
According to the Hague Convention XI, a Will is valid if it complies with the law of the country/place where the testator executed it, OR of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, OR of a place in which the testator had his domicile, OR of the place in which the testator had his habitual residence, OR of the place where the immovable properties are situated.
Obtaining the probated copy of Will from the concerned authorities in Foreign Country- For enforcing a foreign will in India, the will should first be probated from the concerned authority or court in the foreign country. Probate of Will is understood as the legal process that a Will undergoes to prove its validity before any assets can be apportioned to the legatees or recipients. Once the Will is probated, it gets a legal recognition about its existence and Probate helps to recognize that the Will is genuine. Signatures of the testator, competency of the testator, any instance of coercion or undue influence, signatures of the witnesses etc. are examined and if the court is satisfied, the Probate is granted to the applicant who is generally the executor under the Will.
Apostillization of the Probated Will- The probated copy of the Will along with the Final Order obtained from the Foreign Court should be necessarily apostilled from the appropriate authorities.
Grant of Ancillary Probate- After receiving the apostilled copy of the Probated Will, an application for grant of an Ancillary Probate is required to be filed before the court of competent jurisdiction in India. The said application must be submitted along with the authenticated copy of the Will and the Final Order obtained from the Foreign Court. The application for grant of Ancillary Probate in India must be applied within 03 years from the grant of a Probate by the Foreign Court.
Like a usual probate petition, application for obtaining an Ancillary Probate can be challenged by the legal heirs and other interested parties. Where a foreign will has not been so proved, the Judge will have to himself take evidence as to the due execution of the will, according to the law of the country in which the testator was domiciled, in cases where the property in respect of which the probate is sought is moveable or personal property, and must, if necessary, satisfy himself by evidence as to the law relating to the execution of wills in force in such country.
Thus, an ancillary probate to authenticate a foreign will is important, if not sufficiently proved in the Foreign Court. A foreign will, however, if proved and deposited in a court of competent jurisdiction, or a properly authenticated copy of the will from a Foreign Court, will be recognized 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.
To conclude, Indian Courts recognize the Wills that are duly proved in a Foreign Court of law and can order the execution of such assets under the duly proved and probated Will of a Foreign Court. One must keep in mind the complexities involved in the said procedure.
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