Wills & Probate for NRIs

Wills, probate, letters of administration and contested succession in Punjab and Haryana — drafting for non-resident Indians with assets in India, and representation where a will is challenged or where a person has died without one.

A will is the cheapest legal document a person will ever make and the one most often left undone.

The cost of not making one is not borne by the person who did not make it. It is borne by the family, several years later, in a court in India, while one branch of it is living abroad.

For NRIs the position is more exposed than for families who are all in one country. Assets sit in more than one jurisdiction. Heirs are scattered. Nobody is present to produce a document at short notice, and often nobody is certain a document exists at all.

What makes a will valid in India

The requirements are set out in Section 63 of the Indian Succession Act, 1925, and they are not onerous:

• The will must be in writing
• It must be signed by the testator, or by another person in the testator’s presence and by their direction
• The signature must be placed so that it appears the testator intended by it to give effect to the writing as a will
• It must be attested by two or more witnesses, each of whom has seen the testator sign, and each of whom signs in the testator’s presence

No particular form of words is required. A will on plain paper, properly signed and attested, is valid. An elaborate document that was not attested is not.

A witness should not be a beneficiary. The will does not fail for it, but a bequest to an attesting witness is liable to be treated as void, and the arrangement invites a challenge that would otherwise not have been available.

Is registration necessary?

No. A will need not be registered, and an unregistered will is fully valid.

Registration nonetheless has practical value. A will registered with the Sub-Registrar is harder to allege was fabricated or substituted, and its existence and date are on a public record. Where a challenge from within the family is foreseeable — which for NRI clients is frequently the reason the will is being made at all — registration is worth the small trouble it takes.

There is no stamp duty on a will.

Wills of Muslims

The position differs materially. A Muslim testator may ordinarily bequeath only one-third of the estate by will; a bequest beyond that requires the consent of the heirs after the testator’s death. Much of the Indian Succession Act does not apply. Advice on a Muslim will should be taken on that footing rather than the general one.

Probate — when it is required, and when it is not

Probate is a grant by the court certifying the will and confirming the executor’s authority to administer the estate. It is widely assumed to be compulsory. In Punjab and Haryana it generally is not.

Under the Indian Succession Act, probate is mandatory only for wills falling within particular categories — principally wills made by Hindus, Buddhists, Sikhs and Jains within the territories that formed the Lieutenant-Governorship of Bengal and the Presidency towns of Madras and Bombay, or relating to immovable property situated in those territories.

For a will made in Punjab or Haryana, dealing with property in Punjab or Haryana, probate is ordinarily not required. The will can be acted upon and mutation obtained on its basis.

Probate nevertheless becomes necessary or advisable where:

• The will is disputed by an heir, or a challenge is anticipated
• An institution insists on it — a bank, insurer or company may decline to act on the will alone, whatever the legal position
• Assets lie in a jurisdiction where probate is mandatory, such as Mumbai, Chennai or Kolkata
• The estate is substantial or complex, and the executor wants the protection of a court’s imprimatur before distributing it

Where probate is sought, the petition is filed before the District Judge having jurisdiction, and citations are issued to the heirs. Where an heir contests, the matter is converted into a contentious proceeding and tried as a suit.

Letters of administration

Where a person has died leaving a will but no executor has been appointed, or the executor has died or declines to act, the court grants letters of administration with the will annexed.

Where a person has died without a will and a grant is required to deal with the estate, letters of administration are sought on that basis, and the estate devolves according to the applicable law of intestate succession — for Hindus, the Hindu Succession Act, 1956.

How this differs from a succession certificate

These are commonly confused, and the distinction is practical.

A succession certificate is granted in respect of debts and securities — bank balances, deposits, shares, provident fund. It authorises the holder to receive them. It does not determine title to immovable property.

A grant of probate or letters of administration concerns the estate as a whole, including immovable property.

Which is required depends on what the estate consists of and what the institution holding an asset will accept. See also our page on succession certificates and legal heir certificates.

Assets in more than one country

This is where NRI estates most often go wrong, and the error is nearly always in the drafting rather than in the law.

Succession to immovable property is ordinarily governed by the law of the place where the property is situated. Succession to movable property is generally governed by the law of the domicile of the deceased. A single will drawn in Birmingham or Toronto without regard to Indian requirements may therefore operate imperfectly, or not at all, over land in Haryana.

Separate wills for separate jurisdictions are frequently the better arrangement — one dealing with Indian assets, another with assets in the country of residence.

Where that is done, the revocation clause is the thing to watch. A standard will begins by revoking all former wills. A later foreign will containing such a clause, drafted by a solicitor who was not told an Indian will existed, can revoke the Indian will entirely — and the family discovers it only after the death, when nothing can be done about it.

Each will must be expressly confined to the assets it is meant to govern, and must say so.

Challenging and defending a will

A will may be challenged on the grounds that the testator lacked testamentary capacity, that the signature is not genuine, that the attestation was defective, or that the will was procured by fraud, coercion or undue influence.

Where the circumstances surrounding execution are suspicious — a will made shortly before death, one beneficiary who arranged its execution and took the largest share, an unexplained departure from the natural line of succession — the burden on the person propounding the will is a heavier one, and the suspicion must be dispelled to the court’s satisfaction.

We act on both sides of such proceedings.

Doing this from abroad

A will can be drafted on instructions given by email and video conference. Execution requires the testator’s signature and two witnesses, which can be arranged wherever you are — the witnesses need not be Indian and need not be in India.

Where the will is to be registered in India, or where probate or letters of administration are to be sought, the proceedings can ordinarily be conducted through an attorney holder under a properly executed power of attorney. Personal appearance is not generally required merely because a petition has been filed.

Frequently asked questions

Can I make a will covering only my Indian property?

Yes, and for most NRI clients that is the better arrangement. The will should state expressly that it is confined to assets in India and that it does not revoke wills made elsewhere.

Does a will made abroad work for property in India?

It may, but it should not be assumed. Immovable property in India is governed by Indian law as to succession, and a foreign will that does not meet Indian formalities, or that conflicts with a later document, creates difficulty at exactly the point where the family can least afford it. A will drawn with Indian assets in mind avoids the question.

How many wills can a person make?

As many as they wish. Only the last one operates, and an earlier will — however formally drawn — is displaced by a later one dealing with the same assets. Amendments can be made by codicil rather than by remaking the whole document.

What happens if there is no will?

The estate devolves according to the law of intestate succession applicable to the deceased. For Hindus that is the Hindu Succession Act, 1956, under which the Class I heirs take in the first instance. The property is divided by operation of law, whatever the family understood the intention to have been.

Is there a time limit for applying for probate?

There is no fixed period after which a will becomes unusable, but substantial delay in applying is a matter the court will expect to be explained, and delay tends to strengthen the hand of anyone wishing to dispute the will. It is better dealt with early.

Can a will be challenged years after the death?

A will acted upon without objection for a long period is harder to unsettle, but the passage of time is not by itself an answer where fraud or forgery is alleged. Each case turns on when the challenger knew of the will and what they did about it.

What we need from you

For drafting: what the assets are and where, who the intended beneficiaries are, whether a will exists in any other country, and whether any part of the arrangement is likely to be resented.

That last question is not an idle one. A will that anticipates the dispute it may provoke is drafted differently from one that does not.

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Vaqeelsaab acts for non-resident Indians with legal matters in Punjab and Haryana. Property disputes, title verification, partition, succession, wills and probate, matrimonial proceedings, documentation and criminal defence — from our offices in Panchkula and at the District Court, Jagadhri, and before the Punjab & Haryana High Court at Chandigarh.

For matters in Delhi, Rajasthan and Gujarat, we work with counsel in the relevant jurisdiction and manage the matter for you.

Most of it can be handled without you travelling to India.

+91 94160 09800 | info@vaqeelsaab.com