How an NRI Should Make a Will for Indian Assets

An NRI who owns anything in India should normally make a separate, India-specific will. It should be executed in accordance with Section 63 of the Indian Succession Act, 1925, attested by two witnesses who are not beneficiaries, limited by its own terms to Indian assets, and drafted with a revocation clause that does not accidentally cancel the will you hold in your country of residence. Get those four things right and you have removed most of the risk.

The reason this matters more than people expect is that the cost of not doing it is not borne by you. It is borne by your children, in a Bengaluru court, ten years from now, trying to prove what you intended. Our NRI succession and inheritance practice is largely built on cleaning up estates where no will existed, or where one existed and could not be proved.

One will or two? The decision that shapes everything else

If you live in Toronto and own a flat in Bengaluru, you have two realistic options.

A single global will covering worldwide assets. It is simpler to draft and there is no risk of the two documents contradicting each other. The problem is proving it in India: a foreign will has to be brought here, established, and often taken through an ancillary grant, which means your Indian beneficiaries wait on a foreign process before they can touch an Indian asset.

Separate wills, one per jurisdiction. The Indian will deals only with Indian assets, is executed in a form Indian courts recognise immediately, and can be acted on here without reference to anything abroad. This is what I recommend in the large majority of cases.

The choice that sits at the top of every NRI estate plan.

Key takeaway. Two wills is the better answer for most NRIs, but only if both are drafted knowing the other exists. Two wills drafted by two lawyers who have never spoken is worse than one badly drafted will.

The revocation clause trap

Nearly every will opens with a clause revoking all former wills and testamentary dispositions. It is standard, and in a single-jurisdiction estate it is correct.

Now put it in the second of two wills. Your Canadian will, made in March, disposes of your Canadian assets. Your Indian will, made in November, opens with "I hereby revoke all former wills". You have just revoked the Canadian will. Your Canadian estate is now intestate, and nobody will discover this until you are not available to explain.

The fix is simple and it is the single most important drafting point in this article. Each will must revoke only prior wills dealing with the assets in that jurisdiction, and should positively recite that the testator has made or intends to make a separate will dealing with assets elsewhere, which is not affected.

Deadline warning. If you already hold wills in two countries, check the revocation clause in whichever was signed later. This is the most common defect I find in NRI estate documents, and it is invisible until it is fatal.

How an Indian will must be executed

Section 63 of the Indian Succession Act, 1925 governs unprivileged wills. The requirements are short and unforgiving.

1. The testator signs, or affixes a mark, or someone else signs in the testator's presence and by their direction.
2. The signature is placed so that it appears the testator intended to give effect to the writing as a will. Sign at the end, and initial every page.
3. Two or more witnesses attest. Each must have seen the testator sign, or received a personal acknowledgement of the signature from the testator, and each must sign in the presence of the testator. They do not need to be present at the same time as each other, but each must sign in the testator's presence.

Three practical rules follow from that, and they are where wills actually fail.

Do not use a beneficiary as a witness. It is not automatically fatal in India in the way it is in some jurisdictions, but it hands any challenger a ready-made suspicious circumstance. Use two independent adults.

Choose witnesses who will outlive you and can be found. This is the single most neglected point in estate planning. Prefer people materially younger than the testator, and record their full names, addresses, phone numbers and identity document numbers in a separate note kept with the will.

Have a doctor certify capacity if the testator is elderly or unwell. Section 59 requires a sound mind. A contemporaneous medical note costs nothing and answers the challenge before it is made.

Why a registered will is still not a safe will

Registration of a will is optional in India. It is good evidence and I usually recommend it, but it is widely misunderstood as making the will bulletproof. It does not.

Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, which replaced Section 68 of the Evidence Act, requires that a document which the law requires to be attested cannot be used as evidence until at least one attesting witness has been called, where such a witness is alive and capable of giving evidence. The proviso that excuses registered documents from this requirement expressly excludes wills.

So a registered will still needs a living, findable attesting witness. Registration protects against allegations of forgery and fixes the date. It does not remove the witness requirement. This is precisely why the witness-details note matters more than the registration receipt.

What you are not free to give away

A will can only dispose of what is yours to dispose of. For Hindu families this is where confident assumptions go wrong.

Self-acquired property. Yours absolutely. You may leave it to anyone, including outside the family.

Coparcenary property. You can only will away your own undivided share, not the whole. And your share is not what it was: under Section 6 of the Hindu Succession Act, 1956 as amended in 2005, daughters are coparceners by birth. In Vineeta Sharma v Rakesh Sharma, (2020) 9 SCC 1, decided on 11 August 2020, the Supreme Court held that this applies whether or not the father was alive on 9 September 2005, when the amendment came into force.

Property you assume is ancestral but is not. Where a Hindu male dies intestate leaving self-acquired property, it devolves by inheritance rather than survivorship, and a daughter inherits in preference to collaterals such as a brother's sons. That is the holding in Arunachala Gounder v Ponnusamy, (2022) 11 SCC 520, decided in January 2022. Many family assumptions about "the male line" do not survive contact with it.

Agricultural land and beneficiaries who live abroad

Rule 24 of the FEMA (Non-Debt Instruments) Rules, 2019 prevents an NRI or OCI from purchasing agricultural land, a farmhouse or plantation property in India. It does not prevent them from inheriting it. Gift, however, is not permitted.

The drafting consequence is real. If you want farmland to reach a child who lives in Dubai, leaving it by will works. Attempting the same result during your lifetime through a gift deed does not. Families who "simplify things now" by gifting sometimes create the exact FEMA problem the will would have avoided.

Common mistake. Assuming nomination is a substitute for a will. It is not. In Shakti Yezdani v Jayanand Jayant Salgaonkar, decided on 14 December 2023, the Supreme Court held that nomination under the Companies Act does not confer absolute ownership and does not override succession law. The nominee receives, but holds for the heirs.

What you are free to give away, and where that freedom stops.

Choosing an executor

Appoint one, and appoint someone in India, or at least someone willing to travel and act here. An executor abroad can act through a power of attorney, but every step slows down.

Name an alternate. Say expressly whether the executor may sell assets to pay debts and expenses. Consider a modest fixed legacy for a professional executor, since an unpaid executor with no personal stake tends to be a slow one.

A practical checklist

1. Decide: single global will, or separate wills. For most NRIs, separate.
2. Have the revocation clause in each will limited to that jurisdiction, and recite the existence of the other will.
3. List every Indian asset with account and survey numbers. Vague descriptions cause litigation.
4. Execute under Section 63: sign at the end, initial each page, two independent witnesses who each sign in your presence.
5. Record witness contact details and ID numbers in a note kept with the will.
6. Add a doctor's capacity note if age or health could be raised later.
7. Register the will. It is optional but useful, provided you understand it does not remove the witness requirement.
8. Align every nomination with the will, so no institution faces a conflict.
9. Tell your executor where the original is kept. A perfect will nobody can find is not a will.
10. Review after any marriage, divorce, birth, death, or purchase or sale of Indian property.

One thing worth saying from practice: the wills that survive challenge are rarely the elaborately drafted ones. They are the ones where the file shows a testator who understood the document, two witnesses who can be produced, and a clear reason for whatever looks unequal. Where a will treats children differently, say why in the will itself. A single explanatory sentence has defeated more challenges than any amount of formal language.

Once a will has to be acted on, the position is easier than it used to be: probate is no longer compulsory, following the December 2025 repeal of Section 213. We have set out what that repeal changes and what it does not.

Related guides and where to get help

If this is a live problem rather than background reading, our NRI succession and inheritance practice handles these matters from Bengaluru, including for clients who cannot attend court in person. These guides go deeper on the neighbouring questions:

• How to Make a Will in India: A Practical Guide
• Succession Certificate, Legal Heir Certificate or Probate: Which One Do You Need?
• Probate Is No Longer Mandatory in India: What Changed in December 2025

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