ANCILLARY PROBATE IN INDIA- CHALLENGES FACED BY NRIs AND FOREIGN NATIONALS

Ancillary probate is referred to as a “secondary probate” obtained in India, where the deceased left behind a foreign Will consisting of assets across countries. It is usually required when a Will has already been probated in one jurisdiction (known as the primary or domiciliary probate) but the deceased also owned immovable or significant movable assets elsewhere.

Ancillary probate is generally required in the following situations:

• The assets of the deceased testator are owned in different countries 

• The Probate of Will has already been obtained from the competent court/authorities in the country of domicile.

• It is impertinent to obtain a local order to deal with the assets within the territorial jurisdiction.

• Financial institutions or local authorities insist on probate granted by a competent local court.

Ancillary Probate proceedings are generally governed by the provisions of the Indian Succession Act, 1925, particularly Section 228, which deals with grant of Probate where a Will has already been proved and deposited in a competent foreign court.

Section 228 of the Indian Succession Act is reproduced below-

• Administration, with copy annexed, of authenticated copy of will proved abroad.-When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of 1*[India], and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such copy annexed. 
• In a recent judgement passed by the Hon’ ble Madras High court, an appeal was  filed challenging the order of dismissal passed by the Succession Court in Probate by a District Court, wherein, the relief seeking Ancillary Probate was rejected.
• The appellant in the said case was the petitioner in the Original Proceedings and she had filed the petition under Section 228 of The Indian Succession Act, 1925, seeking issuance of Ancillary Probate in respect of the Will executed in the year 2013.

BACKGROUND OF THE MATTER 

According to the petitioner, the respondent was the mother,  and the testator of the Will was her husband who had executed the registered Will, dated 12.06.2013 and died on 04.04.2016 at U.S.A. This Will was also notified by the State of New Jersey, USA on the date of execution, and properties situated in India in favour of the petitioner herein. After the death of testator, the appellant had approached the Middlesex County Surrogate's Court, State of New Jersey, USA seeking Executor Certificate and Letters of Testamentary Certificate. After enquiry, the Court has accepted the case of the appellant and issued both Executor Certificate and Letters of Administration dated 28.04.2016.

Thereafter the petitioner filed a petition seeking ancillary probate before the Succession Court in India invoking Section 228 of the Indian Succession Act.

Since the properties were situated within the jurisdiction of the Chengalpattu District, India, the petitioner had filed the petition seeking Ancillary Probate through a Power Agent.
Before the Probate Court, the respondent submitted a ‘No Objection Certificate” by engaging an Advocate on her behalf. After enquiry, the Probate Court dismissed the relief on the ground that-

1. the petitioner did not personally appeared

2. no Will was produced and 

3. no steps to prove the Will was taken up by the petitioner in the manner known to law. 

Aggrieved over the same, an appeal was filed by the appellant.

The learned counsel appearing for the appellant submitted that the original Will was already probated before the Foreign Court i.e., Middlesex County Surrogate's Court, State of New Jersey and after enquiry, an order of Probate, dated 28.04.2016, which is referred as Letters of Testamentary Certificate and an Executor Certificate were issued in favour of the appellant herein. Since the properties were situated in Chengalpattu District, the appellant had to file the appeal and pray for Ancillary Administration, with copy annexed of authenticated copy of will proved abroad.

Since original Will is already probated, producing the same and necessity of proving the Will once again does not arise. 

As per Section 228 of the Indian Succession Act, 1925, once the Will stands proved and deposited in Court of Competent Jurisdiction situated beyond the limits of India, and properly authenticated copy of the Will is proved, Letters of Administration may be granted with the authenticated copy of the Will. 

This Section is invoked by the petitioner to dispense with production of the original Will. This provision supports the case of the appellant herein that, the performer or the person in whose favour the property is bequeathed is entitled to get ancillary probate from the Court which is having jurisdiction over the properties situated in India. In this case, the properties are situated at Chengalpattu District and also by examining power agent the documents such as Certificate Copy of the Will, Executor Certificate and letters of Testamentary Certificate issued by the Middlesex County Surrogate's Court, State of New Jersey, dated 28.04.2016. 

The Division Bench of this Court has also held that, under Section 228 of the Indian Succession Act, the Probate granted by a Foreign Court shall be supplemented by the Ancillary Probate and same is a judgment in rem. 

(A judgment in rem is a legal decision that determines the status of a specific person, property, or thing, and is conclusive against the entire world, not just the parties involved in the lawsuit.) 

In the case in hand, the Probate Court has taken the view that the Will has to be proved before granting Ancillary grant. The Probate Court has not considered the object behind Section 228 of the Indian Succession Act, 1925, which permits the Probate Court to grant Letters of Administration to follow different Probate to grant Letters of Administration. Since Section 228 of the Indian Succession Act, 1925, itself clarifies that a Will which was already proved and deposited before the Court of competent jurisdiction within or beyond the limits of India, there is no impediment in issuing Ancillary Probate based on authenticated copy of such Will. 

In this case, as stated by the learned counsel, already the Will was produced before the Competent Court and has already been issued and therefore, the Probate Court, based on the above exhibits shall issue, Ancillary Probate as prayed for by the appellant herein. It is not necessary that, the executor of the Will to be present personally for enquiry and give evidence to prove the fact that he is producing the authenticated copy of Will. The Power Agent who represented the petitioner before the Probate Court herein is competent to present petition under Section 228 of the Indian Succession Act, 1925 and to seek Ancillary Probate herein. 

As per Section 228 of the Indian Succession Act, 1925, once the Will stands proved and deposited in Court of Competent Jurisdiction situated beyond the limits of India, and properly authenticated copy of the Will is proved, Letters of Administration may be granted with the authenticated copy of the Will. 

This Section is invoked by the petitioner to dispense with production of the original Will. This provision supports the case of the appellant herein that, the performer or the person in whose favour the property is bequeathed is entitled to get ancillary probate from the Court which is having jurisdiction over the properties situated in India. In this case, the properties are situated at Chengalpattu District and also by examining power agent the documents such as Certificate Copy of the Will, Executor Certificate and letters of Testamentary Certificate issued by the Middlesex County Surrogate's Court, State of New Jersey, dated 28.04.2016. 

The Division Bench of this Court has also held that, under Section 228 of the Indian Succession Act, the Probate granted by a Foreign Court shall be supplemented by the Ancillary Probate and same is a judgment in rem. 

(A judgment in rem is a legal decision that determines the status of a specific person, property, or thing, and is conclusive against the entire world, not just the parties involved in the lawsuit.) 

In the case in hand, the Probate Court has taken the view that the Will has to be proved before granting Ancillary grant. The Probate Court has not considered the object behind Section 228 of the Indian Succession Act, 1925, which permits the Probate Court to grant Letters of Administration to follow different Probate to grant Letters of Administration. Since Section 228 of the Indian Succession Act, 1925, itself clarifies that a Will which was already proved and deposited before the Court of competent jurisdiction within or beyond the limits of India, there is no impediment in issuing Ancillary Probate based on authenticated copy of such Will. 

In this case, as stated by the learned counsel, already the Will was produced before the Competent Court and has already been issued and therefore, the Probate Court, based on the above exhibits shall issue, Ancillary Probate as prayed for by the appellant herein. It is not necessary that, the executor of the Will to be present personally for enquiry and give evidence to prove the fact that he is producing the authenticated copy of Will. The Power Agent who represented the petitioner before the Probate Court herein is competent to present petition under Section 228 of the Indian Succession Act, 1925 and to seek Ancillary Probate herein. 

The court in the present case decided that the order passed by the Principal District Judge, Kancheepuram at Chengalpattu, is not sustainable and the petitioner herein is entitled to Ancillary Probate as prayed for. In the result, the Civil Miscellaneous Appeal was allowed. 

The order passed in Principal District Judge, Kancheepuram at Chengalpattu dated was set aside and consequently, the Probate Court was directed to issue Ancillary Probate.

1. The judgment highlights an important legal protection available to NRIs, foreign nationals, and beneficiaries of foreign Wills who own assets in India. The Madras High Court clarified that once a Will has already been duly probated by a competent foreign court, Indian courts are not expected to conduct an entirely fresh trial to prove the Will again while granting Ancillary Probate under Section 228 of the Indian Succession Act, 1925.

2. A key inference from this ruling is that Ancillary Probate is essentially a supplementary recognition by Indian courts of a probate already granted abroad. Therefore, if a foreign court of competent jurisdiction has already accepted the validity of the Will and issued probate or letters testamentary, Indian courts can rely upon authenticated copies of such documents for properties situated in India.
   

3. The Court further recognised the practical difficulties faced by NRIs and overseas beneficiaries. It held that the personal appearance of the executor or beneficiary is not mandatory in every case, and proceedings can validly be conducted through a duly authorised Power of Attorney holder. This is particularly significant for families residing abroad who may otherwise face logistical and financial hardships in travelling repeatedly to India for succession proceedings.

4. Another important takeaway is that Probate granted by a foreign court has substantial evidentiary value and operates as a judgment in rem, especially when supported by authenticated copies and proper certification. Indian courts are expected to facilitate administration of estates rather than create unnecessary procedural hurdles where the Will has already been judicially recognised overseas.

The ruling also underlines that Section 228 of the Indian Succession Act was enacted precisely to avoid duplication of probate proceedings and to ensure smoother transmission of assets spread across different countries.

The decision would be particularly useful in cases involving:

• NRI estates;

• cross-border succession disputes;

• foreign Wills concerning Indian properties;

• inheritance matters involving overseas executors; and

• administration of assets located in multiple jurisdictions.

The judgment therefore strengthens the legal framework for international estate administration in India and promotes a more pragmatic and globally aligned approach towards recognition of foreign probate proceedings.