Wills Explained: Legal Basics Under the Indian Succession Act

Under the Indian Succession Act, 1925 a will has been defined as follows: 

“Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

In layman’s terms “Will” is a legal document made by a person (testator) expressing the manner in which his property (assets), whether moveable (eg. Shares, bank accounts, mutual funds, cars, jewelry etc.) or immoveable (eg. flats in cooperative housing societies, land, apartments in condominiums etc.) shall be distributed upon his / her death.

Who is capable of making a Will? (Section 59 Indian Succession Act, 1925)

The Indian Succession Act, 1925, under section 59 provides that any person of sound mind and an adult is capable of making a will. An adult is any person above the age of 18 years. A person of sound mind is a person who is capable of understanding the nature and consequences of their decisions and one who is capable of making rational decisions.

For example, a person who is blind is still capable of making a will if he is able to understand what he is doing by it however if a person makes a will whilst being intoxicated under the influence of alcohol, the will is not valid as the person is incapable of making rational decisions whilst being under the influence of alcohol.

Can a will be revoked or altered? (Section 62 Indian Succession Act, 1925)

A will once executed and or even registered can at any time be revoked (i.e. cancelled) and or altered by the person who has made the will, as long as the person who has made the will is capable of at the time of such revocation (cancellation) or alteration capable of disposing his properties by a will (a person who is capable of making a will and disposing his property by a will has been explained hereinabove).

Manner in which a will is to be executed (Signed) (Section 63 Indian Succession Act, 1925)

Once the testator has finished drafting his Will, the testator must affix his mark or his/ her signature at the end of the will in a manner so as to show that it is intended to give effect to the will. The testator should also affix his mark or his/her signature or his/ her initials at the foot of every page of his / her will.

Furthermore, for the execution to be valid the will must also be signed by two witnesses. The two witnesses shall have either:

(i) seen the testator affix his / her signature or mark on the will and have signed the will on the direction of the testator in the presence of the testator

or

(ii) received a personal acknowledgement from the testator that the testator has affixed his / her signature or mark on the will and have signed the will on the direction of the testator in the presence of the testator

Can a beneficiary under the will be an attesting witness? (Section 67 Indian Succession Act, 1925)

A beneficiary under the will, or the spouse, that is the husband or wife of such beneficiary can attest a will. The will does not become invalid if a beneficiary under the will and or the husband or wife of a beneficiary under the will attests the will, however all the bequests made under the will in favour of such beneficiary shall be deemed to be void. It is therefore not prudent for a person and or their husband or wife, who is a beneficiary under the will, to attest the said will.

Does a will have to worded in a particular manner? (Section 74 Indian Succession Act, 1925)

It is not necessary, that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom.

A will does not have any particular format or does not require legal language, however it must clearly explain the intentions of the testator. Clarity is one of main requisites of a good will so as to avoid any confusion after the passing of the testator and to ensure that his properties are distributed in the manner he so intended.

Executor of a will

The Indian Succession Act, 1925 defines an “executor” means a person to whom the execution of the last Will of a deceased person is, by the testator's appointment, confided;

A testator must under his will appoint a person as an executor of the will. An executor is a person who will prove the will and carry out the bequests of the testator under a will upon the demise of the testator. All the property of a testator vests with the executor upon the demise of the testator and the executor then proceeds to prove the will (i.e. obtain a probate) and distribute the properties of the testator in the manner mentioned in the will.

A testator can appoint a single executor or multiple persons as executor under a will. A beneficiary under a will can be appointed as executor under the will as well. Bequests made in favour of an executor are not void by virtue of the person being an executor of the will. However, under section 141 the Indian Succession Act, 1925, if a bequest has been made in favour of an executor, he is not entitled to the bequest until and unless he proves the will or shows his intention to act as an executor.

Basic framework of drafting a will:

There is no format or fixed manner in which a will has to be drafted. A will does not even have to be printed / typed, nor does it have to be made on legal paper or stamp paper. A will can be handwritten.

For a will to be valid all that is required that it must be properly executed by the testator and it must be witnessed by two witnesses. The following is the manner in which one should go about drafting a will :

(i) Begin with your full name and address

(ii) Appoint an executor and or executors

(iii) Make a detailed list of all your assets and liabilities, whether moveable or immoveable

(iv) Distribution of all the listed assets and manner of payment of all liabilities. Clear instructions to be given to avoid any ambiguity and disputes.

(v) Valid execution to be done of the will alognwith initialing of each page

(vi) Two witnesses to witness the will.

However, it is recommended to have a lawyer draft your will.

Drafting a will may seem straightforward, but even small errors can lead to disputes, delays in probate, or your wishes not being honored. A lawyer ensures your will is legally valid, clear, and tailored to your personal circumstances. They can advise on complex issues like property ownership, tax implications, guardianship of minors, and distribution of assets to avoid conflicts among heirs. Lawyers also ensure that your will complies with all legal formalities, reducing the risk of it being challenged in court. In short, having a lawyer draft your will provides peace of mind that your legacy will be executed exactly as you intended.

Does a will have to be registered?

A will duly signed and witnessed does not need compulsory registration and is valid and subsisting. However, if the testator fears that the validity of his will may be challenged and or there may be disputes that may arise amongst his legatees post his demise then as an added caution he can have his will registered.

Written by - Advocate Shefal Chirawawala

Disclaimer: This article is published for the purpose of general information only and is not intended and or does not constitute legal or other advice. The reader shall independently verify the information contained in this article and the author does not claim that the article's content or information is accurate, correct or complete, and disclaims all liability for any loss or damage caused through error or omission.