8/23/2018 Wills and probate in India - Lexology

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Wills and probate in India

Global, India July 31 2018

Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.

Wills and probate

Succession rules

What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets
in your jurisdiction?

The personal law of every religious sect governs the disposition of and succession to an individual’s property and assets in
India.

The concept of domicile applies to limited cases (for individuals other than Hindus and Muslims) with regard to the
succession of moveable property. The principle of lex situs otherwise governs the succession of immoveable property.

Intestacy

What rules and procedures govern intestacy?

Intestate succession is governed by personal law in India, whereby the customary rules of each religious sect apply in
relation to succession, matrimony, guardianship and related matters. For instance, Hindus, Jains, Buddhists and Sikhs are
governed by the Hindu Succession Act 1956, Islamic law applies to Muslims and Christians, and Parsis are governed by the
Indian Succession Act 1925. Each branch of personal law (often a mix of customary and codified law) specifies the rules
and restrictions in relation to the transmission of assets (eg, Islamic inheritance laws has forced heirship rules). Similarly,
such laws specify the procedure for succession; these must be read in conjunction with applicable civil laws.

Governing law

What rules and restrictions (if any) apply to the governing law of a will?

Testamentary succession is governed by the provisions of the Indian Succession Act. These provisions must be read in
conjunction with applicable rules of evidence, as well as real estate laws in case of immoveable property.

Formalities

What are the formal and procedural requirements to mak e a will? Are wills and other estate documents publicly
available?

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Typically, for the execution of an Indian will to be valid, the following conditions must be satisfied:

The place of execution stated in the will must be uniform;

The will must be attested by at least two witnesses; and

Each of the witnesses must:

see the testator sign or affix his or her mark to the will or must see some other person sign the will in the
presence of and by the direction of the testator; and

receive from the testator personal acknowledgment of his or her signature.

The testator and the witnesses must sign the will; the witnesses must sign in the presence of the testator.

Under good practice:

it is preferable for the testator and the witnesses to initial all pages of the will; and

the testator must review/revise the will annually.

The Indian Succession Act stipulates the cases where a probate is mandatory in order to enable the transmission of the
testator’s assets. The provision unequivocally states that no right as an executor or legatee can be established in any court
unless a probate or letters of administration has been obtained of the will under which the right is claimed if:

the will is prepared by a Hindu;

on or after September 1 1870; and

within the territories of the erstwhile presidency towns of Calcutta, Bombay and Madras (now Kolkata, Mumbai
and Chennai) or to the extent that the will relates to immovable properties situated therein.

If a probate is required, then the Indian Succession Act further stipulates the detailed procedural formalities that should be
complied with.

Unless registered with the sub-registrar or contested in a court, a will or probate is not publicly available.

Validity and amendment

How can the validity of a will be challenged? Can the will be amended after the decedent’s death?

A will may be amended or changed by the testator during his or her lifetime by means of a codicil. It is important to register
the codicil as well if the will has been registered.

How is the validity of a will established in your jurisdiction?

If mandated by the Indian Succession Act, the validity of a will is established by means of a probate obtained from a court
of competent jurisdiction.

To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their
validity in your jurisdiction?

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As per the Indian Succession Act, when a will has been proved and deposited in a court of competent jurisdiction situated
beyond the limits of India, and a properly authenticated copy of the will is produced, letters of administration may be
granted by an Indian court of competent jurisdiction to enforce such will.

Estate administration

What rules and procedures govern:

(a) The appointment of estate administrators?

The Indian Succession Act provides for detailed rules for the appointment of an administrator of the deceased’s estate, both
in case of testamentary and intestate succession.

In case of wills, a probate shall be granted only to an executor who is named expressly or by necessary implication, so long
as the executor is competent to contract in case of an individual or a qualified company. In the absence of an executor, a
universal or residuary legatee may be admitted proving the will. If no such person is available, then the intestate succession
laws applicable to the testator apply.

(b) Consolidation and administration of the estate?

The executor or administrator has broad powers to deal with the estate to implement the terms of the will.

(c) Distribution of the estate to heirs?

The executor is duty-bound to distribute the estate of the deceased to the heirs as per the will. The Indian Succession Act
grants the executor wide-ranging powers to make such distributions and deal with varied scenarios (eg, if a legatee
disclaims interest in the estate).

(d) Settlement of the decedent’s debts and payment of any taxes and fees?

The Indian Succession Act lays out the cardinal rule that all the debts, dues, taxes, fees and expenses must be paid from the
estate of the deceased before a distribution can be made to the heirs.

Planning considerations

Are there any special considerations specific to your jurisdiction that individuals should bear in mind during
succession planning?

Individuals prefer either to set up succession structures during their lifetime, as opposed to preparing testamentary
instruments that may get challenged upon demise or undertake lifetime gifts. However, if stamp duties and transfer costs
are high then certain assets (eg, immoveable property) can pass to heirs through a will.

Today, since India does not have an estate duty law, and keeping in mind the low intervention of courts, high net worth
individuals tend to prefer trust structures to plan the succession of their assets.

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