Raj Verma, a British national of Indian origin, died in London in November 2022. Hindu by faith, he was unmarried and had no children. He owned several properties in the UK and India, in addition to bank balance and other investments in both countries. A year before his death, Raj had visited India where he executed a will, bequeathing all his properties to his Indian niece, who he treated as his daughter. When the niece claimed his properties on the basis of this will, she found both the Indian and the UK laws staring in her face.
In India she was told that, since her uncle was a British national, she would have to prove the will by a long legal process. In the UK, her solicitors advised her that the will was invalid since her husband had signed it as a witness: the beneficiary’s spouse is not an acceptable witness to the will in the UK.
What is she to do now? And, what will happen to Raj’s properties? Every now and then, such questions face members of the Indian diaspora the world over.
Largest diaspora
According to a recent report of the Government of India, India has the world’s largest diaspora population of more than 32 million. Of these, about 2 million live in the UK alone.
Many of these still have real connections with India through close family members who live there, or through shares in family properties, or through “ancestral properties”. In the last few years, India has also seen huge investments by the diaspora in its real estate market.
Regrettably though, while the enthusiasm in real estate investments is at its highest, like Raj Verma, most members of the Indian diaspora in the UK have failed to show much farsightedness in terms of succession planning. They engage with investment advisors while purchasing properties, but they forget that life is fleeting and that they must also decide the fate of their investments after they are gone.
No succession planning
This they can do only by executing legally sound succession documents that will be upheld both in India as well as in the UK. When it comes to wills, inheritance and disposition of properties, the case of India is peculiar.
What the diaspora seems to be unaware of is that, in India, most property-related rights are governed by the personal laws applicable to the owner.
The Hindus, Sikhs, Jains and Buddhists are governed by the Hindu law which, interestingly, has extra-territorial application; the Islamic law or Shariat (with its different schools) applies to the Muslims; the Christian Personal Law to the Christians. Likewise, the Zoarastrians have their own personal law.
In some instances, it may be possible for one to opt for a common civil law irrespective of their faith but, contrary to popular perception, this is mostly not the case and faith-based laws continue to apply.
When the owner is an Overseas Citizen of India (OCI) or a Non-Resident Indian (NRI), these laws come in conflict with the laws of the country they are citizen of or resident in (the UK, in our case). Thus arises a situation of “conflict of laws”, leading to issues of the kind being faced by Raj Verma’s niece. It is therefore imperative for investors to be conscious of the settled principles of private international law not just while planning succession but also while investing. At the same time, the UK courts should be persuaded to uphold testamentary and other documents executed in India as per the prevailing Indian laws.
Lengthy disputes
Inheritance and property-related questions are not merely a matter of inconvenience and uncertainty, they can also lead to lengthy and bitter disputes between family members, and have the potential to destroy the survivors’ peace of mind, not to mention the steep cost of litigation.
Just as it is incumbent upon corporations to adopt models of good corporate governance, individual investors must practice good succession governance, at the core of which is a well-crafted legal strategy. Anyone who has assets in either country – UK or India— and wants these to be transferred to their family, friends, or towards a particular cause, in the other country, ought to seek expert legal advice on how to go about it.
ABOUT THE AUTHOR
Based in London and Delhi, Dr Saif Mahmood is an Advocate of the Supreme Court of India and an international lawyer and strategy advisor with more than two decades of experience. He is Founder of the full-service Indian law firm Amicus Juris. Holding a doctorate in law with specialisation in South Asian legal systems and a United Nations Certification in Alternate Dispute Resolution, he frequently appears before various Indian courts and international and domestic arbitral tribunals. He has handled cases, alongside barristers and lawyers, in the High Court of Justice of England and Wales and the Dubai courts. A Visiting Scholar in Law at the University of Oxford (2022) and a well-known author and public speaker, he has had the rare honour of being cited by the Supreme Court of India.
