How to make a Will in India?

Dear Readers,

Will is a legal declaration of the Testator’s wish as to how and in whose favour, the properties owned by him shall devolve, after his death. Indian Succession Act 1925, encompasses the provisions relating to Wills and subsequent devolution of rights on to the beneficiaries. Before we proceed, let us understand the meanings of the following words:

Testator – a person who is the maker/author of the Will.
Beneficiary / Legatee – a person on whom the property devolves after the death of the Testator.
Bequeath – transfer/assignment made by Testator to the Beneficiary, through Will.
Codicil – a document made to provide any clarification to contents or to modify any content or to add any content to the already existing Will. A Codicil is considered to be a part of the corresponding Will.

How the Will is made?

• Any person, during his lifetime can make/write a will and may also register the same.

• Under Section 18 (e) of the Registration Act, 1908, the Will is not a compulsory registrable document. The Testator has an option either to register the Will or not to.

• A will can be implemented only after the death of the Testator. A will should not be considered as a reference or an evidence in any dispute, during the lifetime of the Testator.

• A Will can even be written on a simple paper.

• A Hindu can bequeath his self-acquired property. As enumerated in Section 30 of the Hindu Succession Act, 1956, he can also bequeath his share in a coparcenary property.

• A Testator can revoke his Will at any time. He can also modify his Will at any time. There is no restriction as to how many times the Will can be modified.

What should a Will contain?

• A Will is required to be signed by the Testator. In case he cannot sign, he is required to put his thumb impression on the Will. In case the Testator is unable to do either, any other person under the direction and in the presence of Testator, may sign the Will on Testator’s behalf.

• A Will is required to be attested by minimum 02 or more persons as witness. The Will should bear the name, age, address and signatures of the witnesses.

• The properties to be bequeathed should be described sufficiently, in such manner that the properties can be easily identified.

• It should be clearly mentioned who shall execute the Will.

• A Doctor’s Certificate should be attached to the Will, stating the Testator was in good physical and mental condition during execution of the said Will. The said Certificate may be incorporated in the Will itself as if it is the part of the Will.

• While revoking the earlier Will and making a new Will, such recitals should be prominently incorporated in the new Will.

• If it is found that, a deceased Testator had made Several Wills, the Will made at a later date will be considered as the valid Will.

Who can make a Will?

1. A person who is of sound mind and is major;
2. A Hindu married woman – with respect to her self-acquired properties;
3. A person who is deaf or dumb or blind – if he is able to understand what he is doing;
4. A person who is ordinarily insane – during interval in which he is of sound mind.

However, a person cannot make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

What are the types of Will?

1.Holographic Will – A Will which is completely written by the testator in his own handwriting is known as Holographic Will.

2.Registered Will – A Will registered under section 17 of the Registration Act is known as a Registered Will.

3.Deposited Will – As per section 42 of Registration Act, a testator may deposit his Will enclosed in a sealed envelope with the concerned Registrar of Assurance. Such Wills are known as Deposited Will.

4.Joint Will – When two or more Testators make Will through a common document, as to disposition of their respective properties after their death, it is known as Joint Will. On death of any one of the joint testators, the Will shall be effective only to the extent of such testator and his properties.

5.Mutual Will – When two Testators make a Will in such a manner that, in case of death of any of the testator, the properties shall devolve on other surviving testator, it is known as Mutual Will.

Hope you have sought what you are searching for. The more information as to Probate, Stamp Duty, Registration Fee, Discrepancies, Misnomers, Mis-description, Contradictory Bequeaths, Relation with Witnesses, Revocation, Important Judgements and other topics related to Will shall be brought to you in a separate article. Keep Posted.

(This post should not be considered as legal advice. You are required to approach appropriate legal professional (practitioner/advisor) for your own case and situation. Please note that, this post is directed towards readers in India. The statements and opinion in this post are of author’s own, and do not have binding force before any Court/Authority and thus cannot be used as evidence and for other purpose.)