Navigating Ancillary Probate: Judicial Complexities in Foreign Estate Administration

*Ishmeet Kaur Sehgal

Introduction

The families in India are characterised by a huge wave of migration with members spreading across multiple jurisdictions. About 35.4 million citizens live as Overseas Indians abroad yet, the Indian Succession Act, 1925, limits itself to a domestic outlook, creating a ‘legal chasm’. The legislative gap manifests itself when an Overseas Indian attempts to execute foreign wills in India. The mechanism appears to be very facilitative initially; however, it is subsequently realised that a foreign probate is just an initial document that needs to be supplemented by apostille requirements in the Indian Jurisdiction, resulting in inaccessibility. 

Consequently, the beneficiary is expected to obtain an ancillary probate. This works not merely as a procedural safeguard but as an administrative hindrance and delay. This article contends that the treatment of foreign wills under Indian law, reflects insouciance towards reform with probates being treated as exclusion rather than a verification tool.

The Working of NRI Will Execution - Ancillary Probates

The execution of foreign wills in most of the Commonwealth nations is executed by a process called ‘resealing.’ The process, though not purely mechanical, warrants limited scrutiny and demands a lower cost when compared to India. The UK for instance, recognizes the grants of probate under the Colonial Probates Act. While the Courts do retain the power to scrutinise under Section 2. While the courts do retain the power to scrutinize under Section 2, these grounds are limited to a few narrow areas such as payment of debts and dues. However, in India, an entirely different procedure is followed. Section 57 of The Indian Succession Act, 1925, circumscribes the application of testamentary will execution to immovable property situated within India. On the question of dispensing with the wills executed and proved outside the territory of India, a special provision is laid down by the Act under Section 228.

Section 228 implies that a foreign probate is not automatically recognised; the provision provides for obtaining ‘letters of administration’, making the process cumbersome in practice.

In practical terms, the law requires the beneficiary to file a petition in the court of appropriate jurisdiction and to produce a copy of the original probated will annexed with other relevant documents. The Court then issues a public notice in a local newspaper to invite objections, Post the notification period, the court conducts a hearing to deal with objections, if any, and to ensure the suitability of the petition. Once the court is satisfied, letter of administration is issued to entitle the beneficiaries further to sell off the property or close the bank accounts. This was reaffirmed in Alagammai & 4 Ors. v. V Rakkammal 1991, wherein it was held that a probate granted by a Foreign Court, is not conferred authority in itself; it has to be supplemented by an ancillary probate. This procedure is burdensome for beneficiaries who are trying to execute the testamentary wills of the deceased. 

Why is this Process Problematic?

“Succession is not about fighting the future in a courtroom, but honouring the past”.

This procedure typically presents systemic difficulties for Non-Resident Indians (NRIs) since a foreign probate operates as more of a persuasive document rather than having an authoritative value for testamentary succession. The obstacles are not just procedural inefficiencies but a hindering block in access to justice. The article studies them to reflect deeply on how these inefficacies result in a disproportionate impact on those seeking testamentary succession.

Trial De Novo Impact

The process of obtaining letters of administration results in more or less a duplicative litigation. A decision by a competent foreign authority, already verified in a foreign jurisdiction, is scrutinised again for testamentary capacity and entitlement of a beneficiary. In India, where the familial ties are so inextricably linked, the estate becomes vulnerable to opportunist claims of long-lost shares by distant relatives, given the current procedure. This procedure fails to comply with the international concept of judicial comity, wherein the judiciary of different nations is expected to show a standard of mutual respect towards pronounced decisions. This issue particularly comes forth due to duplicative litigation started at the instance of opportunistic claims. This position can be observed in Mrs Aruna Bharathi v. Mrs M Manicka wherein the beneficiary of a will probated abroad was challenged by a relative in India, multiple issues were dealt with regarding the competence of the foreign court and of the beneficiary. Though the probate was ultimately granted a letter of administration by the Madras High Court, it still resulted in a lot of delay.

Apostille Requirement

The requirement for producing physical and personally verified documents from foreign registries is another crucial problem.  A number of jurisdictions have shifted to a digitised mechanism, for instance, in the UK and Singapore, the process takes place through an e-litigation platform, resulting in less turn over times. In contrast Indian system still relies on manual filling and physical verification. 

The issue becomes particularly relevant since even a minor mistake in a signature can lead to months of bureaucratic delays or even the rejection of the entire petition in the country, further leaving the status of the concerned property in an uncertain stage. Furthermore, as highlighted in Mrs. M. Aruna Bharathi v. Mrs. M. Manickama, 2024, courts usually require the physical presence of the petitioner or the power agent thereof. Arguably, if the entire process had been streamlined via a digital channel, these bureaucratic uncertainties would not have found a place in the stream. 

Ad Valorem court fees and other fee burden

The burden and implications of finances are another significant issue. To begin with the ad valorem court fees i.e. a percentage share of the estate or a fixed share charged by the court, fees paid to the counsel, and costs for retrieving documents have to be paid in addition to a huge sum already paid to obtain the probate in the initial country. 

The relevance of the same stems from the fact that succession is meant for orderly transfer not punitive costs. The costs incurred cumulatively render the process economically unviable. This leads to a significantly disproportionate impact on transnational families. 

International Mechanisms and Way Forward

A comparative analysis of international mechanisms reveals that the latter follow a significantly advanced procedure, placing them at a better position than India. In the UK, for instance, the Colonies Probate Act, 1892 is followed, exemplifying an administrative approach to the process. The framework requires only the ‘resealing’ of a foreign probate by a UK probate registry. The scrutiny is limited to jurisdictional validity and procedural verification without a need for re-litigation. Consequently, the process is completed within weeks. The European Union takes a step forward by adopting the “Succession Passport” model, under which the EU Succession Regulation (Brussels IV) applies. This particularly allows legal certainty in transnational matters by entitling member nations to get the probate executed within the territory of the Union. They are better placed because of the clear distinction between adjudication and verification. 

India must take significant lessons from both these jurisdictions. The need of the hour is to make the process more efficient, cost-effective and globally relevant. The challenge today is to bridge the gap and streamline the framework. One of the most significant steps in this direction is to ratify the Washington Convention, 1973, which provides a uniform law on an international will. Such ratification can entirely bypass the rigid procedure under Section 228 by allowing probates from signatory nations to be accepted upon preliminary verification. Further, bilateral agreements with regional countries hosting a huge Indian diaspora would facilitate a streamlined and efficient procedure.

Alternatively, at the procedural level, the role of the courts must be remodelled to a rather ministerial one, necessitating intervention only in the cases of prima facie fraud, preventing a full re-litigation of wills. Entire recalibration should be barred unless an outright defect is detected. Procedural reform must be implemented immediately. Technical reforms must also be catered to, digitising probate documents, integrating Indian authorities with overseas registrations, and recognising electronic authentication methods can significantly reduce delays and bureaucratic friction. Further, the framework can be streamlined by doing away with the apostilles through intergovernmental verification channels altogether.  In the interim period, NRIs may prefer Indian wills to avoid the long procedure. However, this is only a temporary solution and must not be seen as an alternative to legislative adaptation and for systemic reform. 

Conclusion

While significant reforms have been achieved in the governance of domestic wills, the international sphere governing foreign wills remains stagnant and is yet to witness an advancement.  The object of succession becomes fraught when the law fails to address the needs of its diverse population spanning multiple jurisdictions. The process must be digitised so as to help in lower turnover times and streamline the process. Furthermore, it is important to take steps by enacting special legislation for NRIs like the Colonial Probate Act or a Succession Passport for the nations with a high diaspora. Additionally, the Washington Convention must be ratified. Therefore, Indian law must evolve with the increase in transnational families.  

*The Author is a second- year law student pursuing B.A. LL.B. (Hons.) at Rajiv Gandhi National Law University, Punjab.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.