Understanding a Will Under the Indian Succession Act, 1925

Section 2(h) of the Indian Succession Act, 1925 defines a will as the legal declaration of a testator’s intention about their property, which they want carried out after their death. The person making the will is the testator. A will has no effect during the testator’s lifetime and operates only from the date of death.

Key Features of a Will

A will differs from a gift or a sale deed because nothing passes while the testator is alive. The testator keeps full ownership and can sell, gift or mortgage the same property during their life.

Essential Elements of a Valid Will

• Legal Declaration: The document must express the testator’s intention in a form the law recognises. Section 74 makes it clear that no technical words are needed, as long as the intention is clear.
• Disposition of Property: The will must deal with the testator’s property, movable or immovable.
• Effect After Death: The wishes take effect only on the testator’s death.
• Revocability: Under Section 62, the testator can revoke or change the will at any time while they have the capacity to make one.

Who Can Make a Will

Section 59 allows any person of sound mind who is not a minor to make a will. A person who is deaf, mute or blind can make one if they understand what they are doing. A will made while the testator is intoxicated, or so ill that they cannot understand its effect, is not valid. Section 61 makes a will void if it was obtained by fraud, coercion or pressure that overpowered the testator’s free will.

How a Will Must Be Executed

Section 63 sets the requirements for an ordinary (unprivileged) will:

• Signature of the Testator: The testator must sign or put their mark on the will, or someone else may sign in their presence and on their direction.
• Placement of Signature: The signature must show that the testator intended the document to take effect as a will.
• Two Witnesses: At least two people must attest the will, each having seen the testator sign or having received the testator’s acknowledgment of the signature.

Registration of a will is optional under the Registration Act, 1908, and no stamp duty is payable on it. Registration does help when the will is later challenged.

Privileged Wills

Sections 65 and 66 allow soldiers, airmen and mariners on an expedition or engaged in actual warfare to make a privileged will. Such a will can be written or oral and does not need the formalities of Section 63.

Codicil and Revocation

A codicil, defined in Section 2(b), is a document that explains, alters or adds to a will and forms part of it. Under Section 70, a will can be revoked by a later will or codicil, by a written declaration executed like a will, or by burning, tearing or destroying it with the intention of revoking it.

Who the Act Covers

The Act’s testamentary provisions apply to Hindus, Sikhs, Jains and Buddhists through Section 57, along with Christians and Parsis. Muslims are governed by their personal law, under which a will can generally cover only one-third of the estate. Probate is mandatory under Section 213 for wills made by Hindus and certain others where the will was made in, or deals with immovable property in, the territories of the former Bengal, Madras and Bombay presidencies.

Conclusion

A will is the testator’s own plan for their property, and it becomes final only on death. Most disputes arise from defects in execution, such as a missing witness, or from claims that the testator lacked capacity. Get your will drafted and executed with legal advice on Wills in India so it holds up if anyone challenges it.