A will is a legally enforceable document that allows a person, the testator, to decide how their assets will be distributed after their death. The Indian Succession Act, 1925 sets out the criteria that must be satisfied for a will to be valid and enforceable.
Who Can Make a Will?
Under Section 59 of the Indian Succession Act, 1925, any person who is of sound mind, meaning capable of understanding the nature of their actions, and above 18 years of age, may make a will. Minors and individuals of unsound mind, including those under intoxication or coercion, cannot legally make a will. The testator must be able to fully comprehend the nature and consequences of what they are doing at the time of writing it.
When Is a Will Considered Valid?
To create a legally valid will, the following requirements must be met:
- The testator must be 18 years old or older;
- The testator must be of sound mind when writing the will, and free from undue influence or coercion;
- The will must be in writing. Oral wills are recognised in rare cases, such as under Muslim personal law, but a written will is preferred for ease of legal enforcement; and
- Section 63 of the Act requires that the will be signed by the testator in the presence of at least two witnesses, who must also attest it.
What Is Probate, and Why Does It Matter?
Probate is a legal certification that a will is valid, serving as proof that it is genuine. In India, the probate process is governed by the Indian Succession Act. Probate is mandatory in several states where the will concerns immovable property located in places such as Mumbai, Kolkata and Chennai, and may also be required where the validity of the will is questioned or its terms are ambiguous.
To obtain probate, the executor must file an application in the competent court along with the will and relevant supporting documents. The court verifies the authenticity of the will and issues probate once it is satisfied that there are no objections.
Registration of a Will
Under Section 18 of the Indian Registration Act, 1908, registering a will is not mandatory. A will can be registered at the Sub-Registrar's office, and while registration is optional, it provides additional security by reducing the scope for disputes, and a registered will is generally easier to prove in court. An unregistered will remains enforceable provided it fulfils all the legal requirements of a valid will.
Revocation or Changes
A testator can revoke or change their will at any time before death. For changes or additions, the testator can execute a separate document called a codicil, which must be signed and attested in the same manner as the original will, allowing amendments without rewriting the entire document. Making a will legally enforceable in India ultimately comes down to compliance with these formalities; proper execution, attestation and, where necessary, probate are what protect a testator's wishes and help prevent disputes after their death.
Disclaimer: The content of this article is intended to provide general guidance on the subject matter. Specialist advice should be sought about your specific circumstances.