A will is a legal document indicating the distribution of a person’s property and assets at his or her death. It clarifies, prevents litigation, and gives both the individual and his family peace of mind. In India, however, laws concerning wills differ depending on religious communities, which has different provisions for Hindus, Muslims, Christians, and so on.

This article aims to  provide a simple guide on understanding will laws in India, how they apply across different religions, and hence, for every community be it Hindu, Muslim, Christian, or others. This guide shall make you understand the legal framework, essential elements of a will, and why it is necessary to have one in place to safeguard your wishes.

What is a Will?

According to Section 2(h) of the Indian Succession Act, 1925:

“A Will is 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.”

Elements of This Definition: 

1. Legal Declaration:  A Will must be a formal declaration that means it must comply with legal procedures for it to be valid. 

2. Intention of the Testator: The Will represents the explicit intentions of the testator regarding the distribution of their property. 

3. Operative After Death: The provisions of a Will come into effect only after the death of the testator. 

The General Clauses Act, 1897, defines a Will under Section 3(64)as: 

“Will shall include a codicil and every writing making a voluntary posthumous disposition of property.” 

 Elements of This Definition: 

1.Inclusion of Codicils: A codicil, which is a legal document used to amend or modify a Will, is treated as part of the Will itself. 

2. Voluntary Nature: The disposition of property must be voluntary and not made under compulsion or undue influence. 

3.Posthumous Disposition:  The document applies to the transfer of property after the death of the testator. 

Together, these definitions emphasize that a Will is: 

– A formal and voluntary document. 

– Enforceable only after the testator’s death. 

– A means to distribute property according to the testator’s wishes, while ensuring legal validity. 

Essential Persons Involved in a Will

Testator:The person who creates the Will. 

Legatee: A person or entity receiving a bequest under the Will. 

Executor: The person appointed by the testator to carry out the Will’s instructions.

Witnesses: Person who observe the testator sign the Will.

Beneficiary: Any person or entity that benefits from the estate, which can include legatees and heirs.

Heir: A person entitled to inherit property when there is no valid Will.

Guardian: A person responsible for managing the assets of minor beneficiaries.

Laws Related to Will in India

• Indian Succession Act, 1925

This is the main law relating to Wills in India. This act governs the testamentary succession of individuals, such as the formalities, conditions, and execution of Wills. It also gives directives regarding the distribution of a deceased person’s estate if no Will is made. The Act does not apply to Muslims. To matters of inheritance and Wills, Muslims are governed by personal laws called Shariat Law.

• Hindu Succession Act, 1956

Sec. 30 of the Act states that, “Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925  or any other law for the time being in force and applicable to Hindus.”This is the main provision of testamentary succession for those individuals who come under this Act. Any Hindu person can draft a Will to dispose of their self-acquired property, and the Will supersedes the laws of inheritance in the case of testamentary succession.

• The Bhartiya Sakshya Adhiniyam, 2023

This Act prescribes the legal procedure of demonstrating the genuineness of Wills before Indian courts. This encompasses the procedure of placing the Will before the court, as well as the related rules of evidence.

• Registration Act, 1908

Although a Will may not be compulsorily registered under this Act, however, enables Wills to be registered optionally with a view to establish genuineness and to prevent possible fraud.

• Indian Trusts Act, 1882

This Act is relevant in the context of Wills when a testator creates a trust through their Will, thereby giving legal recognition to such trusts.

Provisions Related to Wills in India

1. For Hindu, Christian, Parsi and Others

Governing Law: Wills for Hindus, Christian and Parsi are governed by the Indian Succession Act, 1925

Key Provisions:

Who Can Make a Will (Sec 59) : Any person of sound mind, not a minor, can make a Will. Even persons ordinarily insane can make a Will during lucid intervals.

• Types of Wills:

1. Privileged Wills: Simplified Wills for soldiers, mariners, and airmen in active service, which may be oral or written.
2. Unprivileged Wills: Wills created by all other individuals following formal legal requirements.

• Execution of a Will( Sec. 63 & 66 ) :A Unprivileged Will must be signed by the testator or someone authorized by them in their presence.It must be attested by at least two witnesses. Privileged Wills apply to individuals like soldiers, airmen, and mariners, allowing oral or written execution without witnesses.
• Revocation of a Will (Sec. 62): A Will can be revoked at any time by the testator during their lifetime by creating a new Will, destroying the old one, or making an express declaration.

2. For Muslims 

Governing Law: Muslim personal law governs Wills for Muslims and differs significantly from the Indian Succession Act.

Key Provisions:

Extent of Testamentary Power: A Muslim can bequeath only one-third of their property through a Will. The remaining two-thirds are distributed according to Islamic inheritance laws.

Consent of Heirs: A bequest exceeding one-third requires the consent of the legal heirs.

• Types of will: 

1. Oral Will: Verbal declaration in the presence of two witnesses.
2. Written Will: A formal written document signed by the testator and attested by two witnesses.
3. Will by Gesture: The testator expresses his intention through gestures that are understood by witnesses.
4. Deathbed Will: An oral Will made close to the time of death.

• Revocation of Wills: A Will can be revoked by the testator at any time before their death.
• Bequest to Legal Heirs: A legal heir can only inherit under the Will with the consent of other heirs.

This rules are based on Sunni or Shia law, depending on the sect of the testator.

Need for a Will

Control Over Assets: Allows you to decide how your property is distributed after your death.

Prevents Disputes: Reduces conflicts among family members by clearly outlining your wishes.

Appointing an Executor: can help simplify the legal process and ensure the testator’s wishes are fulfilled.

Care for Minor Children: Enables you to appoint a guardian for your children.

Charitable Donations: Allows you to leave assets to charitable causes.

Funeral Wishes: Specifies your preferences for funeral arrangements.

Avoids Intestate Succession: Prevents assets from being distributed by default under law if you die without a Will.

Peace of Mind: Provides reassurance that your wishes will be respected and reduces stress for loved ones.

How to Make a Will in India

Determine Your Assets: List all properties, assets, and belongings you wish to include in your Will.

Choose an Executor: Appoint a trusted person to ensure your Will is carried out as per your wishes.

Decide on Beneficiaries: Identify individuals (family, friends, charities) who will inherit your assets.

Write the Will: Draft the Will in writing, ensuring clarity and specific instructions for asset distribution.

Ensure Legal Capacity: Ensure you are of sound mind and at least 18 years old 

Medical Examination : After going through required medical examination take doctors certificate

Sign the Will: Sign the Will in the presence of at least two witnesses 

Witnesses’ Signatures: Have the witnesses sign the Will, confirming they saw you sign it, and they are not beneficiaries.

Include a Revocation Clause: Specify that this Will revokes all previous Wills to avoid conflicts.

Consider Registration: While registration is optional, it’s advisable to register your Will for authenticity 

Store the Will Safely: Keep the Will in a secure place and inform trusted individuals about its location.

You can create your Will by legal experts advice like easywillindia.com for your peace of mind, assuring that your wishes are respected and reduces stress for loved ones and passing your legacy to the beneficiaries of your choice. 

Conclusion

Understanding Will laws in India is very important to anyone looking to ensure that their assets are distributed according to their wishes after death. A well-drafted Will brings clarity, prevents disputes, and takes care of your loved ones.

No matter whether you adhere to the Indian Succession Act provisions or the specific rules applicable under Muslim law, understanding the key requirements, which include execution, witnesses, and revocation, are important. The process of making a Will is both a legal process and an act of consideration for ensuring peace of mind for yourself and your family. It is advisable to seek the advice of a legal expert when drafting a will to ensure its validity and compliance with the law.

Adv. A. S. Mulla

Adv. Abdul Mulla (Mob. No. 937 007 2022) is a seasoned legal professional with over 18 years of experience in advocacy, specializing in diverse areas of law, including Real Estate and Property Law, Matrimonial and Divorce Matters, Litigation and Dispute Resolution, and Will and Succession Planning. read more….