How to Make a Valid Will in India: A Simple Guide

A will is a written declaration of how you want your property distributed after your death. Under Section 63 of the Indian Succession Act, 1925, a will must be signed by the person making it and attested by at least two witnesses. Registration is optional, and no stamp paper is required.

Many families in India avoid talking about wills. The result is often years of disputes among people who once loved each other. A clear, valid will is one of the kindest documents a person can leave behind.

Who can make a will?

Any adult of sound mind can make a will. A person who is temporarily unable to understand what they are doing, for example because of illness or intoxication, cannot make a valid will during that time. The will must be made freely, without coercion, fraud or undue influence.

What property can you give by will?

You can give your self-acquired property and your share in joint or ancestral property, to the extent the law allows. Muslims are governed by Muslim personal law, under which a will (wasiyat) can generally cover only up to one-third of the estate after funeral expenses and debts, unless the heirs consent to more.

What should a will contain?

1. Your details: full name, age, address and a statement that you are making the will of your own free will and in sound mind.
2. Revocation clause: a statement that this will revokes all earlier wills.
3. List of assets: land and buildings with survey numbers, bank accounts, deposits, shares, jewellery, vehicles and other valuables.
4. Beneficiaries: who gets what, with full names and relationships. Be specific to avoid confusion.
5. Executor: a trusted person to carry out the will.
6. Date and place.
7. Signature of the person making the will, on every page if possible.
8. Attestation by two witnesses, who sign in your presence and see you sign.

Who can be a witness?

Any adult of sound mind can be a witness. Avoid using beneficiaries or their spouses as witnesses, because a gift to an attesting witness can be affected under the Indian Succession Act. Choose people who are likely to be available later, as they may need to confirm the signing.

Should you register the will?

Registration is not compulsory under the Registration Act, 1908. Still, registering the will with the Sub-Registrar gives an official record and makes it harder to challenge on grounds of forgery. You can also deposit a will in a sealed cover with the registrar for safe custody.

Is probate necessary?

Probate is a court's certification of a will. Whether it is mandatory depends on the community and on where the property is situated, under the Indian Succession Act. Banks and authorities may still ask for probate or a succession certificate in some cases. A lawyer can tell you what applies to your property.

Common mistakes to avoid

• Vague descriptions such as "my house" when you own more than one.
• Forgetting to name an alternative beneficiary if someone dies before you.
• Leaving out the date or the witnesses' signatures.
• Making changes by hand without fresh signatures and attestation. Use a codicil or a new will instead.
• Not telling anyone where the will is kept.

Can you change your will?

Yes, as many times as you wish. The last valid will prevails. Small changes can be made through a codicil, which must be executed with the same formalities as a will.

Sources

• India Code: the Indian Succession Act, 1925, the Hindu Succession Act, 1956 and the Registration Act, 1908.

Property and succession law are core subjects in our law programmes. For individual guidance, approach a lawyer or the legal aid clinic.