Will registration for NRI for Indian Property
Must an NRI make a Will or leave his property to natural succession.
Should the NRI make a joint, composite or common Will of his assets and properties in India and abroad. If so, should such a Will be registered and where. Need a person be appointed to execute the Will in different jurisdictions. Would it be better if there are different wills for separate properties in India and abroad? Should such different wills be registered individually in separate jurisdictions? How should inheritance rights of beneficiaries of NRIs be safeguarded in India and abroad. Which law Indian or Foreign would apply to assets and properties of NRIs in different countries.
Two distinct Indian legislation exist. The Hindu Succession Act, 1956 (HSA) contains the codified law relating to intestate succession among Hindus. The Indian Succession Act, 1925 (ISA) consolidates the law applicable both to intestate and testamentary succession applicable to persons other than Hindus. To begin with, for an NRI, it is advisable to execute a written Will, get it witnessed and registered to avoid any intricate problems of succession and inheritance. With the abundance of problems of NRI properties in India, natural succession in the absence of a will may pose problems from third party claimants. An NRI ought to Will his property by choice to his natural heirs or others and thus eliminate speculation or bogus claims from claimants and pave a smooth succession. Thus, what ought to follow naturally must be better confirmed by a Will also.
The HSA unlike the Hindu Marriage Act does not have extra territorial application. In the wisdom of the Legislature, there are well defined principles of International law, which regulate succession to the movable and immovable properties of a Hindu NRI domiciled outside the territory of India. Thus, on the basis of International comity, the following threeprinciples can be deduced regarding the application of HSA :-
Firstly,for a Hindu domiciled outside India, succession to his immovable property in India is governed by HSA whereas succession to his movable property shall be governed by the law of the country of his foreign domicile.
Secondly, where a Hindu is domiciled in India, succession to his immovable property outside India shall be governed by the law of the country where the property is situated. Movables outside India will be governed by HSA or by the local law of the foreign country in which the movable property is situated.
Thirdly, in respect of a Hindu domiciled outside India, succession to his movable and immovable property outside India shall not be governed by HSA but by the law of the foreign domicile of the Hindu.
In the event of there being no Will, natural succession among the category of heirs as per the order of succession will flow as per the HSA. Then, speculation, outsider claims, disputes among heirs and third party rights are rife. Hence, it is in the best interest of an NRI to pen a Will and put down his wishes and leave nothing to doubt.
In the light of non-application of HSA outside India, it is strongly recommended that NRIs of Hindu origin having immovable assets in different countries should execute a joint composite Will pertaining to all their immovable properties located in different jurisdictions. For NRIs, execution of separate Wills for separate immovable properties in different countries is not advisable. Establishing genuineness of a composite Will is easier than proving multiple Wills. It is also recommended that the NRI must register the Will separately in every jurisdiction even though it is optional in India to do so. It may be mentioned that the registration in a particular country may hold good in respect of properties of the NRIs in that jurisdiction. Accordingly, separate rules of registration of different countries ought to be complied with as per rules of the foreign domicile of the NRI.
It is also advisable that the NRI should specifically appoint an executor to execute the Will in the particular jurisdiction where the property is situated. This assists the beneficiaries and simplifies the division of assets as per the Will. A written Will of an NRI duly witnessed and registered in respect of Indian properties identifies the claimants and legal heirs. Its multiple registration assures the seal of finality. The message for the NRI therefore is, to act well in advance and simplify the task of the beneficiaries who are to inherit their properties. Thereafter, the law of the jurisdiction, where the property is situated will govern the process of succession on the basis of rights established under the Will. The global Indian must take advantage of this well codified position of Indian succession law.