How to make valid will by overseas resident
Gana Subramanian
(Querist) 18 April 2015
This query is : Resolved
HOW TO MAKE VALID WILL BY OVERSEAS RESIDENT
My query is as to how to ensure the validity of a will made by testator outside India
I seek learned advise from experts in this forum for the below circumstances:
I am a senior citizen. I am currently a resident of Australia. I have recently become an Australian Citizen and was therefore required to give up my Indian Citizenship. However I have an Overseas Citizen of India (OCI) Certificate issued by the Govt of India.
I own immovable property in Chennai registered in my name (and bought out of my own savings) and also have liquid cash assets in India in my name. I have no assets in Australia (as having migrated after my retirement).
I have a wife and three children. My wife and two of my children live in Australia.
I have written up a will (in Australia) distributing my assets to my heirs in certain proportions, have noted one of my heirs as the Executor of the will and have had the will attested by an independent witness (who is a non-beneficiary). I have notified the beneficiaries about the existence and the location of my will.
After my passing away, as my property is in Chennai, I understand that the executor will have to apply to the High Court in Chennai to have the Will PROBATED (i.e. have the will certified by the court as authentic / genuine). I understand that this could be a costly and time-consuming process.
So my query to the experts is as follows:
1. Would my Australian Citizenship cause issues at time of executing my will (after my passing away)?
2. Is a Will executed outside India valid (in India)?
3. Is there any value in getting an Australian lawyer to draft the will for me? If not an Australian Lawyer how about an Indian lawyer?
4. Is there any value in registering the will in Chennai? If so how do I do this? and cost / time taken estimates?
5. What formalities / documents / costs / time resouces would the executer of the will need to get the will PROBATED in Chennai?
6. Can my will be executed without PROBATING it?
7. How does the associated beneficiary transfer the property to their name after the will is probated? Also can you give a rough estimate of the costs / stamp duty etc payable for thus transferring title?
I thank you in anticipation of your expert advice.
Gana
Devajyoti Barman
(Expert) 18 April 2015
1. Your citizenship is of no hindrance toe execute a Will.
2.You can execute Will from Australia also provided it i attested by 2 witnesses who would be required later to come to india at the time of Probate of Will.
3. You better get it drafted by an Indian Lawyer.
4.Yes, you better get it registered . Cost differs from lawyer to lawyer.
5.While registration witnesses may not be present but at the time of probate their presence is required.
6. Will without Probate has no value in most part of India.
7.By mutation the beneficiary get his name changed. The registration fees of Will is negligible while it requires no stamp duty.
Kumar Doab
(Expert) 18 April 2015
Mr. Barman has explained in detail.
Agreed to Mr. Barman.
Gana Subramanian
(Querist) 19 April 2015
Dear Mr Devajyoti Doab,
Thank you for your prompt and comprehensive reply. I have just one further clarification: You have advised me that it is better to get the will registered in India (point no 4) - is my presence required to have the will registered or can a local lawyer in India do it on my behalf (without my presence). What is the benefit of registration?
Regards Gana
Gana Subramanian
(Querist) 19 April 2015
Dear Mr Devajyoti Barman,
Thank you for your prompt and comprehensive reply. Can you please advice whether INSTEAD OF REGISTRATION OF THE WILL IN INDIA, whether I can have the Will Notorised by an Australian Notorised Public, THEN having an APOSTILLE attached to the Document by the Australia Department of Foreign Affairs and Trade (ADFAT)and then the signature of the ADFAT delegate of the department authenticated by the Indian Consulate. And this Notorised Will would then be produced by the executor at the time of PROBATE OF WILL in a Chennai court after my passing?
Regards
Gana
N.K.Assumi
(Expert) 19 April 2015
Apostile can serve the purpose. In India registration of will is optional, provided the will is properly drafted according to legal requirement.
Gana Subramanian
(Querist) 20 April 2015
Dear N.K.Assumi
Thank you. Much appreciated.
Regards
Gana
A. A. JOSE
(Expert) 21 December 2015
I agree with the view expressed by S/shri.Devjyoti Barman and NK Assumi. Will executed and Notarised in Australia is legally tenable in India.
