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Discussion > Legal Documents > Others > Letter of Administration   Unanswered Threads Post New Topic

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There are 27 Replies to this message


Peter


Queriest
[ Scorecard : 46]
Posted On 22 August 2010 at 02:51 Report Abuse

Hi,

I wanted your help as I seem to be having a hard time dealing with bank of india.  my parents held substantial funds there but have now passed away some years ago.

I have provided them with all the forms they requested, probate from the UK, death certificate, passport...basically everything they have asked for.

After 10 months of going through their 'process' they have now said to me that I need a Letter of Administration from India and everything I have given is not recognised in India.  

I was advised by my Lawyer that if I forward them the Will (which i have now done) then obtaining the Letter of Administration will not be necessary.  The local branch in India is not sure so they have passed it onto their Legal Department.  They will not give me the contact details of their legal department so i cannot ask my lawyer to speak with them.

Can anyone advise as to where I stand?

If I require the Letter of Administration how do I obtain this?  Can this be obtained from the UK?

Any advice would be most appreciated.

Thank you



Isaac Gabriel


Private Practice
[ Scorecard : 3450]
Posted On 22 August 2010 at 03:41 Report Abuse

Send an RTI application requesting the stage at which the matter stans and the probable date by which the matter will be settled.


Peter


Queriest
[ Scorecard : 46]
Posted On 22 August 2010 at 05:31 Report Abuse

Hi,  thank you for your post.  What is an RTI application?

In their last email they said that I have the probate from the UK but they need a letters of administration under the provision of Section 228 of the Indian Succession Act, 1925 from a court in India.

Once they receive this then the Bank will release the funds.  It seems this is what they are waiting for.

I have been told that i need to goto India to get this letter of administration.  This would be impossible for me to do.  Is there any other way?

 


Siddhi Agarwal


Owner
[ Scorecard : 1184]
Posted On 22 August 2010 at 07:54 Report Abuse

We had a similar issue but we were based in Mumbai, India where our father had an account with Bank of India. They did not ask for letter of administration in our case we had to submit Indemnity Bond etc.

May be because you are NRI they want letter of administration but I do feel it is not necessary due to various ammendments in banking rules.

Pl . try with them and confirm if you are the lone heir.


Siddhi Agarwal


Owner
[ Scorecard : 1184]
Posted On 22 August 2010 at 07:57 Report Abuse

RTI means Right To Information Act where in you may seek information about non classified matters involving any entity.


N.K.Assumi


Advocate
[ Scorecard : 21565]
Posted On 22 August 2010 at 08:57 Report Abuse

Section 219 (g) of the Indian succession Act: Where the deceased has lrft property in [India] Letters of Administration shall be granted according to the foregoing rule, notwithstanding that he had his domicile in a country in which the lae relating to testate and intestate succession differs from the Law of [India]

Section 228 ISA: When a will has been proved and deposited in a court of competent jurisdiction situated bewyond the limits of the [State] whether within or beyond the limits of [India] and properly by authentication copy of the will is produced, Letters of Administration may be granted with a cxopy of such copy anexed. Refer sections 211 to 236 of the Indian Succession Act of 1925. Here is an old case which can guide you in the matter:-

In Re: Goods Of Edwards Carmichael ... vs Unknown on 12 December, 1939

Cites 7 docs - [View All]

Section 241 in The Indian Succession Act, 1925

The Indian Succession Act, 1925

Section 228 in The Indian Succession Act, 1925

Section 243 in The Indian Succession Act, 1925

Section 212 in The Indian Succession Act, 1925

Bottom of Form 1

 

 

Equivalent citations: AIR 1940 Mad 680

In Re: Goods Of Edwards Carmichael Mccankie vs on 12/12/1939

JUDGMENT

Leach, C.J.

1. This is an appeal from an order of Somayya, J. directing that letters of administration to the estate of one Edward Carmichael McOankie be issued to the appellant on the furnishing of security under Section 291, Succession Act. The appellant contends that the learned Judge should have held that he was entitled to letters of administration with a copy of the will annexed under Section 241 of the Act in which case he could not be called upon to furnish security. The deceased died in Little Hampton, England, leaving a will dated 21st February 1936. Probate of the will was obtained in England. The testator appointed Mrs. Madeline Emily Hawkins his executrix. The executrix was not able to corns' to India to take out letters of administration and she granted a power of attorney to the appellant to enable her to apply as her agent. Since the Succession Act of 1865, it has been the practice of this Court to grant letters of administration with a copy of the will annexed in cases such as this without requiring security to be furnished. The Court is informed that the same practice has prevailed in the Calcutta and Bombay High Courts. The learned Judge considered' that the practice was in conflict with the wording of Section 241 and he refused to follow it. He held that the appropriate Section was Section 228 which meant that security would have to be furnished.

2. Section 228 says that when a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the Province, whether within or beyond the limits of His Majesty's dominions and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of the authenticated copy of the will annexed. Section 228 is in Chap. I of Part IX of the Act. This chapter contains general provisions with regard to the grant of probate and letters of administration. Section 241 falls in Chap. II which deals with limited grants. This Section says that when an executor is absent from the province in which the application is made and there is no executor within the province willing to act, letters of administration with the will annexed may be granted to the attorney or agent of the absent executor for the use and benefit of his principal, limited until he obtains probate or gets a grant of letters of administration to himself. In addition to the assistance rendered by the learned advocate for the appellant the Court has had the assistance of the learned Advocate-General. It has been accepted by counsel that unless the executrix in England can avail herself of the provisions of Section 241, she must come-out to India and apply herself for letters of administration, there being no other Section which can be read as permitting of an application being made by an sent in such a case as this. Sections 242 and 243 allow applications by agents but they do not apply here. Section 242 relates to the case where the person to whom, if present, letters of administration with the will annexed might be granted is absent from the province and Section 243 to an application for letters of administration on intestacy.

3. I do not think that it could have been the intention of the Legislature to compel an executor living abroad to come to this country to take out letters of administration personally when he has obtained probate of the will in his own country. It might be impossible for him to come to India and then the estate here would have to remain unadministered. Although it has never before been called upon to give a judicial pronouncement on the question, this Court, in common with the other Presidency High Courts, has, as I have already indicated, read Section 241 as covering an application for letters of administration with a copy of the will annexed when the original cannot be produced because it is held by a Court abroad as the result of that Court having granted probate. The question was raised in the Calcutta High Court in 1875 and it was decided that Section 212, Succession Act, 1865, which is the same as Section 241 of the present Act, did apply in a case like the present one. The Calcutta case is In re the Goods of Leckie (1875) 15 Beng. L.R. App. 8. There a British subject possessed of property both in India and in England died in England leaving a will by which he appointed four persons to be his executors in England and one person to be his executor in India. The English executors obtained probate in England, but the Indian executor renounced. An application was then filed in the Calcutta High Court for letters of administration with the will annexed to be granted to the attorney of the English executors. It was held that the attorney was entitled to the grant. Phear, J. who decided the case said that it would be in accordance with the practice of the Court that letters of administration with the will annexed should be granted to the attorney of the English executors.

4. In the course of his judgment Somayya, J. expressed the opinion that Section 241 is intended to apply to the case where the executor is temporarily absent from the province but his return is contemplated. I do not share this opinion. I appreciate that the Section might be read, as the learned Judge has read it, as applying only to the case where there is an application for letters of administration with the original will annexed, but to do so is to disregard the scheme of the Act, Inasmuch as it has been read by this Court and other High Courts for so many years in the broader sense and in a sense which avoids anomaly and hardship I consider Courts would not be justified in insisting on the strict construction. The learned Judge in the course of his judgment has referred to two cases : In the Goods of Ashton (1905) Q.W.N. 251 and Deputy Commissioner of Singhbum v. Jagadish Chandra Deo (1921) 8 A.I.R. Pat. 206. It has not been suggested at the bar that the latter case has application and in my opinion it has no bearing. The former case is in point. A Bench of the Allahabad High Court there insisted on the observance of the strict letter of Section 212 of the Act of 1865. The argument that the strict letter must be followed is one that cannot be lightly brushed aside, but I consider that it should not prevail in view of the fact that it has been read differently for over half a century and that the broader construction is in keeping with the scheme of the Act. Consequently, I would allow the appeal and direct that letters of administration be issued to the petitioner under 8. 241 which means without security.

Krishnaswami Ayyangar, J.

5. I have come to the same conclusion but not without hesitation. But for the uniform practice of this Court and of the Bombay and Calcutta High Courts I should have been inclined to agree with the opinion of Somayya, J. which is the same as the opinion expressed by the Allahabad High Court. I do not feel that the language of 8. 241 is sufficiently clear to set aside this long practice, more especially when a strict interpretation is likely to lead to this result, namely that there would be no provision in the Act for an agent of an executor in a foreign country to apply for letters of administration in this country in circumstances similar to those present in this case.

 


Nu.Delhi.Law.Fora.


Advocate-on-Record, Supreme Court of India
[ Scorecard : 1061]
Posted On 22 August 2010 at 10:44 Report Abuse

Dear Querist,

 

In the event a person dies intestate or a Will does not name any executor, an application can be filed in the courts of law having appropriate jurisdiction for grant of probate. Secondly, it may be noted that under the Indian Succession Act, 1925, a LoA can be granted to any person entitled to the whole or any part of the estate of the deceased person. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government. Thirdly, the documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it.

 

 The application for letters of administration in cases where the deceased has left a will shall be made by petition. If the Will be not in the English language, an official translation thereof shall also be annexed along with the original Will. There shall also the annexed to the petition (1) a schedule of the property and credits which the deceased died possessed of or entitled to at the time of his death which have or are likely to come to the petitioner’s hands, (2)a schedule

 

This being the position of law and as advised by Ld. Advocate NK Assumi above, I am of the view that Letters of Administration can be filed by yourself or through your advocate in India.

 

More so, showing the debts of the deceased and all other items which by law the Petitioner is allowed to deduct for the purpose of ascertaining the net estate of the deceased and (3) a schedule of property, if any, held by the deceased in trust for another and not beneficially or with general power to confer a beneficial interest. The petition shall be accompanied by –

(a) the vakaltnama signed by the Petitioner, unless the Petitioner appears in person;

(b) the administrator’s oath;

(c) the affidavit of one of the attesting witnesses, if available; and

(d) a copy of the estate duty return, if filed with the Controller of Estate Duty.

 

Trust this would suffice.


Peter


Queriest
[ Scorecard : 46]
Posted On 22 August 2010 at 13:52 Report Abuse

 

Hi,

Thank you all for your replies.

From what i understand from the extracts of law that N.K. Assumi has given is that it is not necessary for me to obtain a Letter of Administration.

If this is correct, what do you think I should do, as the Bank are not allowing me access to their Legal Department.

I also think this is true as I have given them everything from death certificates, probates (UK), Wills, etc

I was thinking that I should perhaps email my contact at the Bank and perhaps quote from what you have said. 

Further, based on the advice of Advocate Rabin Majumder it would seem that I do not have to goto India to have this Letter of Administration if the Bank insist.

I have no relatives there, so how would I obtain this.

Would I have to get an Advocate from India or could an Advocate in the UK do this? Or indeed could I do this?

Also what are the approximate cost and timescales in obtaining a Letter of Administration?

Thank you all again for your kind help.


Nu.Delhi.Law.Fora.


Advocate-on-Record, Supreme Court of India
[ Scorecard : 1061]
Posted On 22 August 2010 at 14:31 Report Abuse

Dear Querist,

 

Further you our opinion and your second query, I am of the view that cost and time taken in obtaining LoA depends on many aspects. First and foremeost is the location of the immoveable properties, and that of moveable properties and then, what kind of services you need. Secondly, probable time taken in all such cases is 12 to 18 months if not contested and if contested, this may go, approximately 24 to 36 months. Thirdly, you may appoint any person (may be your relative or manager having direct/indirect knowledge over the affairs of the properties in question) by executing a GPA/SPA  who in turn will act through a registered advocate.

 

Trust this would suufice.

 

--
Thanks & regards.

Rabin Majumder
Advocate & Attorney
For NuDelhiLawFora
At:
Ch. 91, Sh. AK Sen Chambers Block,
Supreme Court of India
Also at:
Lawyers’ Consultation Room /
2nd Floor, Bar Room
Delhi High Court
New Delhi – 110003
+ 91 98992 59811
+ 91 9013307807
+ 91 11 65955548


Peter


Queriest
[ Scorecard : 46]
Posted On 22 August 2010 at 14:52 Report Abuse

Wow, that is indeed a very long time.  Basically all other matters in the UK have been dealth with.  The only  matter remaining is the funds in the Bank of India.  There is no property or anything else in India.

I could in theory then appoint the manager in the bank to obtain this for me.  In the UK the probate took about 3-4 weeks to come.  Is it a much more longer process in India?

In addition, what is a GPA/SPA?  Sorry for my ignorance, i am not familiar with the legal terminology.

 Finally, if this was you, how would you proceed?  The process has already taken 10months.  The local branch has signed off everything as ok, but when they submitted to their head office, the legal department there said about needing a letter of administration.  Up till now, i was told everything i submitted was ok.

Thank you again for your help and for your patience.



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