• Making a will of indian citizen residing at present abroad

My mother is living with me abroad. She wishes to make a new will for her Indian properties in india as since her last will there have been some changes. Is her will signed in front of officer at Indian with two witnesses and later attested with local notarization valid in india? Is this considered to be a registration? Valid for probate in índia in Indian courts? Does she require medical fitness certificate from MBBS doctor?
Asked 4 years ago in Family Law
Religion: Hindu

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19 Answers

Any document including will signed before official of Indian Consulate and attested by him is a valid document. Executing subsequent will automatically invalidates pervious will. Will executed by mother abroad is valid and enforceable

Ravi Shinde
Advocate, Hyderabad
5134 Answers
42 Consultations

Will attested by 2 witnesses would be valid in India 

 

it is not registration of will 

 

3) it would be valid for probate 

 

4) obtain medical certificate that mother is mentally fit 

Ajay Sethi
Advocate, Mumbai
99844 Answers
8148 Consultations

No registration is different to be done before sub registrar in india

Prashant Nayak
Advocate, Mumbai
34562 Answers
249 Consultations

A Will not be be made by a registered document in order to make it valid as per Indian laws.

She can very well prepare a Will,m get it attested by two witnesses, if she has to prove that she was mentally capable of taking the decision to bequeath the property as per the contents of the Will, she can attach a certificate from any doctor to prove that she mentally fit at the time of making this Will. 

T Kalaiselvan
Advocate, Vellore
90044 Answers
2498 Consultations

There is no bar from beneficiary being executor of the will 

Ajay Sethi
Advocate, Mumbai
99844 Answers
8148 Consultations

An executor of will cannot be legatee/beneficiary under the will. Executor is a disinterested third person.  

Ravi Shinde
Advocate, Hyderabad
5134 Answers
42 Consultations

1. no need to sign the Will before the consulate and the local notary 

2. the testator has to sign on the Will which has to be witnesses by 2 attesting witnesses who would also sign on the Will in token of such attestation

3. there is no need to attach a doctor's certificate. But you can have it attached stating that the testator is in a sound and mental state of mind and understands what she is doing 

4. the beneficiary can be the executor. However if the executor does not prove the Will then he cannot claim the benefit under the Will also. That is to say, he will have to forego the bequests made by the mother if he refuses to assume executorship for proving the Will in the Court by filing a probate petition

5. the signing of the Will by the testator and attestation by 2 witnesses can be video recorded just as a failsafe

Yusuf Rampurawala
Advocate, Mumbai
7902 Answers
79 Consultations

Yes. But he can't be  both beneficiary and executor

Prashant Nayak
Advocate, Mumbai
34562 Answers
249 Consultations

its already answered 

please read the responses carefully

executor can be the beneficiary in the mother's Will

there is a restriction against the witness and the beneficiary being the same person! (however that restriction also i guess does not apply to Hindus)

Yusuf Rampurawala
Advocate, Mumbai
7902 Answers
79 Consultations

The validity of Foreign Wills was adopted by various nations at the Hague Convention XI. India also adopts the same.

For a Foreign Will to be enforced in India, apart from being executed as per the laws of such country, it has to be validated on a two-fold basis. At the first stage, a Probate has to be obtained from the concerned Court or authority in the Foreign country; such order granting a Probate must contain the following observations by the concerned Court or authority:

· That the Testator has validly signed the Will and that there are no doubts/ suspicions/ uncertainties as to the signature of the Testator on the Will.

· That the Will is executed by a person competent to make the Will and is free from fraud, coercion and undue influence;

· That the Will was attested by two witnesses, each of whom has seen the Testator sign the Will;

       OR

If the Will was signed in the absence of the witnesses, each of the witnesses has received from the Testator, a personal acknowledgment of the Testator’s signature;

· That at least one witness has signed the Will in the presence of the Testator;

· That the original Will was submitted and has been retained by the Court or authority in the Foreign country and a Certified Copy thereof is to be issued to the applicant/ beneficiary.

The authenticated/ probated copy of the Will and the Final Order obtained from the Foreign Court are required to be apostilled and an Apostille Certificate is required to be obtained from a competent authority under the Apostille Convention (Hague Treaty Convention 12). India is also a signatory to this Convention.

 

At the second stage, an Application for grant of an Ancillary Probate [also known as Resealing of Probate under the English Law] is required to be filed before the concerned Court in India, along with the authenticated copy of the Will and the Final Order obtained from the Foreign Court.

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

Even the youngest son can be executor.

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

It is not mandatory for a executor to be a beneficiary in the will. 

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

1. Registration of WILL is not compulsory but only optional. Unregistered WILL with two witnesses signing will suffice.

2. There's no need for her to sign in front of an official of the consulate. 

3.  You can get probate of an unregistered WILL.

4.   Medical Certificate from an M.B.B.S. Doctor is advisable, to prevent allegation that she was not mentally unstable at the time of execution of WILL.

5.  There's no compulsion that executor has to be appointed through WILL.

6.  Executor can be one of the beneficiaries of the WILL. Hence if your mother can appoint you as Executor for her WILL.

Shashidhar S. Sastry
Advocate, Bangalore
5624 Answers
339 Consultations

A beneficiary can be appointed as an executor of the Will. 

It is not pertinent that only the eldest child should be made as an executor,  even the youngest child can be appointed as the executor of the Will. 

T Kalaiselvan
Advocate, Vellore
90044 Answers
2498 Consultations

Yes, even a beneficiary of the Will can be appointed as an executor of the Will. 

T Kalaiselvan
Advocate, Vellore
90044 Answers
2498 Consultations

Yes executor can be beneficiary in the will 

Ajay Sethi
Advocate, Mumbai
99844 Answers
8148 Consultations

Dear Client,

A will signed in front of an officer in India with two witnesses and notarized is valid in India. It need not be compulsorily registered. However, when an individual wish to add one more witness to his/her Will that is the Govt. of India (Sub-registrar's Office), they may do so voluntarily with extra efforts and some additional cost. It is advisable to have a medical fitness certificate, only to confirm that the person making the will is of sound mind.

You can be the executor of your mother's will as it is legally correct. However, such an appointment of an executor of the will has to be written by your mother.

An executor can also be a beneficiary to a certain will. However, one cannot take everything unless he/she is the sole beneficiary of the will.

Thank you.

Anik Miu
Advocate, Bangalore
11020 Answers
125 Consultations

- As per law , registration of a WILL is not mandatory , and it can be written on a plain paper in the presence of two witnesses .

- Further at the time of writing of the WILL , the testator must be of sound mind and should sign in the presence of witnesses. 

- Hence, your mother can write a WILL there in the presence of two witnesses who are resident of India , so that they can depose before the court in case of any dispute. 

- A beneficiary cannot be the executor . 

Mohammed Shahzad
Advocate, Delhi
15821 Answers
242 Consultations

No it is not ideally happens that both are one

Prashant Nayak
Advocate, Mumbai
34562 Answers
249 Consultations

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