Whilst estate planning is for everyone – resident Indians or non-resident Indians (“NRIs”), yet in case of NRIs, there are some considerations, which are set out below:
1. Can an NRI make a Will for their assets in India?
Indeed. NRIs typically own two types of assets – a) assets
acquired overseas; and b) self-acquired or inherited assets in India. In such
cases, it is recommended that separate wills are drafted – one which covers
foreign assets and another will which specifically takes care of Indian assets.
It is pertinent to note that Indian will must comply with Indian law, both at
the time of execution and in relation to probate, if applicable.
2. Should NRI be present in Indian when writing an Indian
Will?
An NRI Testator (a person making the Will) is not required
to be physically present in India to draft a Will governing Indian assets. The
Will could be drafted anywhere and would be valid only if it follows the
requirements of Indian law, viz. be signed by the testator and two witnesses.
There is no other requirement. For Wills relating to foreign assets, the
requirements shall vary depending on the country in which the Will is to be
executed.
3. Can witnesses be NRIs as well?
Yes. However, it is important to keep in mind that at the
probate stage, the witnesses would need to submit an affidavit to the Indian
court that they have witnessed the testator signing the Will. Depending on
where the NRI witnesses reside, a letter to that effect from a notary in their
home jurisdiction would also suffice.
4. Can the Will be signed via video conferencing with the
witnesses from India?
This is not permitted under Indian law. The law requires
that the two witnesses be physically present when the Will is being signed.
5. Does the Will need to be registered?
The pros and cons remain unchanged regardless of a person’s
residency. The primary advantage of registration is to establish authenticity
of the Will and the testator’s sign, thereby avoiding any future dispute on
these specific grounds. If such concerns are non-existent, registration can be
avoided. It is mandatory for NRIs to be physically present in India for
registering a Will. One can also consider attesting the Will at a local embassy
as per applicable process.
Article by Vyoma Mehta. She is an Advocate practising in
Mumbai. For any information on the above article, you may reach out to her by
writing on her email address vyomaamehta@gmail.com
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