A will is one of the cheapest legal documents to make and one of the most expensive to get wrong.
The statutory requirements
Section 63 of the Indian Succession Act, 1925 requires that:
- The will is in writing. There is no prescribed form, no stamp paper requirement, and no need for legal language.
- The testator signs or affixes a mark, or someone signs in their presence and by their direction.
- It is attested by two or more witnesses, each of whom has seen the testator sign or received the testator's personal acknowledgement of the signature, and each of whom signs in the presence of the testator.
The testator must be of sound mind and not a minor. That is the whole of it.
Who is capable of making one
Section 59 says every person of sound mind who is not a minor may dispose of his property by will, and its Explanations settle most of the arguments that arise later. A person who is deaf, mute or blind is not thereby incapacitated, provided they can know what they are doing by the will. A person who is ordinarily insane may make a will during a lucid interval, which is won or lost on contemporaneous medical evidence. Being feeble does not by itself take away capacity; not understanding what your property is, or who your relatives are, does.
Under Section 67, a bequest to a person who attests the will is void, though the will itself survives. Asking the son who inherits the house to sign as a witness is the classic way of accidentally disinheriting him. Use independent witnesses, and ideally one of them should be a doctor.
- In writing, signed by the testator, or by someone else in the testator's presence and by his direction
- Attested by two or more witnesses, each of whom saw the testator sign or received a personal acknowledgement of the signature, and each signing in the testator's presence
- Witnesses who are not beneficiaries, and ideally not the spouse of a beneficiary
- The testator of sound mind, and evidence of it if age or illness may be raised
- An executor named, and willing to act
- Every asset identified so it can be traced, with account and property particulars
- Any exclusion of an expected heir explained, since silence invites a challenge
- Dated, paginated, and each page signed
What makes a will survive a challenge
- Precise description of property. Survey number, door number, extent, boundaries, account numbers, folio numbers. "My house in Jayanagar" invites litigation.
- A residuary clause covering anything not specifically mentioned, including assets acquired later.
- An executor, named with an alternate.
- Evidence of sound mind. A contemporaneous doctor's assessment can help establish testamentary capacity, but it does not make a will immune from challenge.
- An explanation where you are excluding a natural heir or making an unequal distribution. Courts look at unexplained unnatural dispositions with suspicion.
- Video recording of the execution, which is increasingly common and very persuasive.
Naming the executor is not a formality
Under Section 222, probate can be granted only to an executor appointed by the will, expressly or by necessary implication. If you appoint nobody, or your executor has died, refuses to act or is legally incapable, Section 232 is what saves the estate: a universal or residuary legatee may then be admitted to prove the will and be granted letters of administration with the will annexed. That is a longer route, and entirely avoidable by naming an executor and an alternate. Our note on why probate is no longer mandatory explains what changed, but the appointment still decides who has authority to deal with banks and registrars if a grant is ever needed. One drafting point saves the executor months: give an express power to sell, to operate accounts and to pay debts out of the estate, and leave with the will a dated schedule of assets with account and folio numbers, locker details and policy numbers. The schedule is not part of the will and can be replaced every year without re-executing anything.
Registration is optional but useful
A will need not be registered. Registering it with the sub-registrar creates a public record of the date and of your appearance, which makes forgery and undue influence far harder to allege successfully. It does not make the will unchallengeable.
The Registration Act, 1908 puts wills in the optional category under Section 18, and goes further than most people realise. Under Section 40, the testator, or after his death any person claiming as executor or otherwise under the will, may present it to any Registrar or Sub-Registrar., and under Section 41 the registering officer must then satisfy himself that the will was executed, that the testator is dead, and that the person presenting it is entitled to do so. So an unregistered will is not a lost cause; it can be brought on the register afterwards. What registration does not do is prove the will, since attestation still has to be proved in the usual way. Our guide on how to make a will in India sets out the execution sequence and what the witnesses should be told before they sign.
Changing it
Make a fresh will revoking all earlier wills, or execute a codicil with the same formalities. Do not amend by hand on the original; interlineations and crossings-out are a gift to anyone contesting it.
Hand amendment is dangerous because Section 70 is exhaustive about revocation. An unprivileged will can be revoked only by marriage, by another will or codicil, by a writing declaring the intention to revoke executed with the same formalities as a will, or by burning, tearing or otherwise destroying it with the intention of revoking, done by the testator or in his presence and by his direction. Nothing else works, so telling the family you have cancelled it does not. Note the first limb as well: marriage revokes an unprivileged will, so anyone marrying after making one should make a fresh one, revoking the earlier wills expressly.
One limit: a Hindu can will away self-acquired property freely, but not the undivided interest of others in coparcenary property. Muslim personal law restricts testamentary disposition to one third of the estate without the consent of the heirs.
To put the coparcenary point precisely: Section 30 of the Hindu Succession Act, 1956 allows any Hindu to dispose by will of any property capable of being so disposed of, and its Explanation expressly deems a coparcener's own undivided interest in Mitakshara coparcenary property to be capable of testamentary disposition. So a coparcener may will away his own share; what he cannot touch is the share of the others.
If you hold assets abroad, or live abroad
A single worldwide will is possible but slow, because a grant obtained abroad usually has to be proved afresh here. The usual answer is a separate Indian will confined to Indian assets, executed in India before Indian witnesses, expressly stating that it does not revoke the foreign will and is not revoked by it, with an executor resident in India. Our note on an NRI will for Indian assets deals with the drafting and the choice of executor. Whichever route you take, keep one original and do not staple, unstaple or re-pin the pages; pin marks get put to the attesting witnesses in cross-examination.