Validity of will abroad, written in india
sowmyakam
(Querist) 12 October 2015
This query is : Resolved
Hi,
I would like to know if a will which is created, written and signed by me (testator) in India is valid in countries like Australia or US. The is for myself and which is self-earned and could include investments, bank accounts balances, jewellery etc, other estate.
Can the will be prorated and/or executed by beneficiaries living abroad ?
Does this require to be on stamp paper and/or registered or a will on plain paper be accepted abroad ?
Thanks,
Sowmya K
Hemant Agarwal
(Expert) 13 October 2015
1. Will can be executed from "anywhere", without any restrictions, by bonafide Citizens of India, subject to following due procedure of law.
2. IF the Will is executed in Australia, for properties in India, THEN the will shall be attested by minimum two witness and further attested by the local counslate /embassy officer (which effectively by-passes the Registration of Will)
3. However, the Will so executed will be governed by India Laws, for properties based in India.
4. Disputes of such will, can be adjudicated only in India, under Indian Laws.
Keep Smiling .... Hemant Agarwal
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sowmyakam
(Querist) 13 October 2015
Hello Mr. Hemanth, Thank you for your response. For your Ans 2, would I require 2 additional witness to sign on the will who are from the embassy or can this be later attested when there is a need for executing the will.
Apologize, I am a little confused with your response.
Regards,
Sowmya K
K.S.Srinivas
(Expert) 14 October 2015
Two independent witnesses have to sign on the will and the same is to be attested by the embassy officer etc.
M V Gupta
(Expert) 15 October 2015
The querist asks "if the will executed in India will be valid in countries like Australia or US". The answer is yes.
The will can cover all kinds of assets of the testator - movable as well as immovable, bank deposits investments in shares, mutual funds etc. Will can be executed on a plain paper and does not attract any stamp duty. Registration optional. As the will may be referred to or relied on in foreign countries better get it registered.Ensure that the will is executed and attested by two witnesses who shall be independent and do not figure in the will as beneficiaries for any of the testators assets.
SAINATH DEVALLA
(Expert) 18 October 2015
THIS IS AN ARTICLE FROM ECONOMIC TIMES:
Should NRIs make separate Wills for overseas properties?
"A Will for the Indian properties should be made separately and should never be clubbed with the properties overseas,"
Rahul Ranadive a tax attorney with Florida based Global Tax and Estate Counsel LLP agrees, "You can make a single Will in your country of residence and an ancillary probate in the country where the property is situated. However, there could be challenges. For instance, a foreign executed Will must qualify in India and meet the provisions of the local religious law. Similarly, a Will executed in India must qualify in the foreign country. Procedurally, therefore, in many situations, it can be better to make two separate Wills."
Having gone through the basics of making a Will, in future articles we will look at specific scenarios such as instances where persons living abroad own property in India or US citizens with US assets, living in India etc.
M V Gupta
(Expert) 18 October 2015
The suggestion of the Attorney of Florida is worth considering if the testator is making will covering properties in India and abroad.But so far as probate of the will is concerned it will be the court at the place of execution that will have jurisdiction and not the foreign court. (Ofcourse these issues may not arise in the case of Querist as she did not state that she has assets in foreign countries).
Hemant Agarwal
(Expert) 18 October 2015
SURPRISING:
1. A person CAN make two legally effective wills ? ? ? ?
Keep Smiling .... Hemant Agarwal
Read Articles: http://hemantagarwal21.blogspot.in/?view=sidebar
M V Gupta
(Expert) 19 October 2015
Any prohibition under Indian law for a testator to make one main will to cover domestic assets and another to cover exclusively foreign assets? I feel he can make a supplemental will with suitable clauses clarifying that the second will is meant only for his foreign assets and not in derogation of his will for his Indian assets.
The issue being a new one not so far discussed earlier, I request Experts to deliberate it.
T. Kalaiselvan, Advocate
(Expert) 19 October 2015
Even I am confused about two Wills becoming operative simultaneously. A deep study on the author's query as well as related law is to be made for forming an opinion.
