Understanding Wills: Types, Features, Execution Conditions, and
Validity
A will is a legal declaration made by a person, known as the testator, expressing
how their assets and estate should be distributed after their death. It ensures the
lawful execution of the testator’s last wishes and prevents disputes regarding
inheritance. The Indian Succession Act, 1925 governs wills in India, providing
guidelines for their execution, validity, and interpretation.
Types of Wills
1. Privileged Will
A privileged will is made by individuals who are in exceptional situations, such as
soldiers engaged in warfare, mariners at sea, or airmen in active service. This type
of will can be made orally or in writing and does not require strict formalities like
attestation by witnesses.
Legal Reference: Section 66 of the Indian Succession Act, 1925.
Key Feature: Can be informal and is applicable only to individuals in
certain professions.
2. Unprivileged Will
An unprivileged will is created by individuals who do not fall under the category of
privileged persons. Such wills require certain formalities for their execution,
including the testator’s signature and attestation by at least two witnesses.
Legal Reference: Section 63 of the Indian Succession Act, 1925.
Key Feature: Must be attested by two witnesses and signed by the testator.
3. Conditional or Contingent Will
A conditional or contingent will takes effect only if a specified condition is
fulfilled. If the condition remains unfulfilled, the will does not become operative.
Example: A will stating that a beneficiary will inherit property only upon
marriage.
Key Feature: Becomes valid only when the condition is met.
4. Joint Will
A joint will is created by two or more persons, typically spouses, to ensure that
their property is managed according to mutual understanding after their deaths.
Key Feature: Can be revoked by either party during their lifetime.
5. Mutual Will
Mutual wills are made by two individuals agreeing that after the demise of one, the
survivor will not alter the terms of the will.
Key Feature: Creates a binding agreement between two testators.
6. Holograph Will
A holograph will is completely handwritten, signed, and dated by the testator
without witnesses. Such wills are considered highly authentic if proven to be in the
testator’s handwriting.
Key Feature: Enhances authenticity due to the testator’s handwriting.
7. Oral Will
An oral will is spoken in front of witnesses rather than being written. It is generally
valid only under Muslim law or in privileged circumstances.
Key Feature: Requires credible witnesses for validation.
8. Duplicate Will
A duplicate will involves two copies of the same will, one kept with the testator and
another with a trusted individual.
Key Feature: Ensures safety in case one copy is lost or destroyed.
9. Concurrent Will
A concurrent will is used when a testator has properties in multiple jurisdictions
and drafts separate wills for each location to comply with local laws.
Key Feature: Facilitates smooth succession across different legal systems.
Features of a Will
1. Legal Declaration: It must be a formal statement of the testator’s wishes
regarding asset distribution.
2. Testamentary Capacity: The testator must be of sound mind and legally
competent.
3. Voluntary Execution: It must be made without coercion, fraud, or undue
influence.
4. Revocability: A will can be revoked or modified by the testator at any time
before their death.
5. Property Disposition: It specifies how assets are to be distributed among
beneficiaries.
6. Effect After Death: A will only becomes effective upon the testator’s
demise.
Conditions for Execution of a Will
1. Sound Mind (Section 59 of the Indian Succession Act, 1925): The
testator must be mentally sound at the time of making the will.
2. Free Will: The testator must execute the will without any external pressure.
3. Proper Attestation (Section 63 of the Indian Succession Act, 1925): The
will must be signed by the testator in the presence of at least two witnesses,
who must also sign in the testator’s presence.
4. Clear Distribution: The will should unambiguously specify beneficiaries
and the assets allocated to them.
5. Written Execution: Except for privileged wills, all wills must be in
writing.
Validity of a Will
A will is considered valid if it meets the following criteria:
1. Legal Compliance: It adheres to the provisions of the Indian Succession
Act, 1925.
2. Absence of Fraud: If a will is found to be fraudulent, it can be declared
invalid by a court.
3. Competent Testator: The testator must be of legal age and sound mind.
4. Proper Witnessing: The absence of required witnesses can render the will
void.
5. Court Recognition: If challenged, the will’s validity is determined through
probate proceedings.
Relevant Sections in the Indian Succession Act, 1925
Section 59: Defines the eligibility of a testator.
Section 63: Outlines the execution and attestation process for unprivileged
wills.
Section 66: Governs privileged wills for soldiers, mariners, and airmen.
Section 74: Allows revocation of a will at any time before the testator’s
death.
Section 213: Establishes the requirement for probate to prove the will’s
validity.
Frequently Asked Questions
1. Is it mandatory to register a Will?
Registering a Will is not a legal requirement under the law however, it can be
optional as provided under Section 18 of the Indian Registration Act, 1908.
Furthermore, as per Section 40(1) of the Indian Registration Act, 1908, the testator,
or after his death any person claiming as executor or otherwise under a Will, may
present it to any registrar or sub-registrar for registration at any time. It is advisable
to get the Will registered as it not only provides a legal sanctity and greater
authenticity to the document but also substantially reduces the likelihood that
family members or other relatives would contest the validity of the Will.
2. Is there any provision under the law to safeguard the custody of Will?
Yes, if the testator decides to get the Will registered with the registrar, then post
registration, any testator may, either personally or by duly authorized agent, deposit
with any registrar his Will in a sealed cover super scribed with the name of the
testator and that of his agent (if any) and with a statement of the nature of the
document.
3. Who is the executor of the Will? Is it mandatory?
As per Section 2(c) of the Act, executor is defined as a person to whom the
execution of the last Will of a deceased person is, by the testator's appointment,
confided. In simpler terms, the individual designated to oversee the entire
procedure and make sure that the instructions in the Will are carried out in
accordance with the testator’s preferences. Even though it is not mandatory
however, it is advisable to appoint an executor in the Will for a more efficient and
quick distribution of assets.
4. How will the devolution of an intestate’s property take place? What will
happen if the intestate has left child or children only?
A person is deemed to die intestate in respect of all property of which he has not
made a testamentary disposition which is capable of taking effect. The property of
an intestate devolves upon the wife or husband, or upon those who are of the
kindred of the deceased, as per the rules stipulated under the Act. Furthermore,
where the intestate has left a surviving child or children, but no more remote lineal
descendant through a deceased child, the property shall belong to his surviving
child, if there is only one, or shall be equally divided among all his surviving
children.
5. Do all types of wills require witness signatures to be considered valid in
India?
Yes, witness signatures are essential for will registration in India, reinforcing its
authenticity and legal validity in the process.
6. Are there any types of wills that bypass the need for probate in India?
A probate is optional and hence, there is no restriction in law to get probate of a
Will. However, a probate is mandatory in case the Will or codicil has been made in
the jurisdictional limits of any of the three cities i.e., Kolkata, Chennai or Mumbai,
or, if the immovable property is situated in any of these cities.
7. Are there specific types of wills that do not require formal registration in
India?
Registering a Will is not a legal requirement under the law, however, it can be
optional as provided under Section 18 of the Indian Registration Act, 1908. Though
it is advisable to get the Will registered in India as it not only provides a legal
sanctity and greater authenticity to the document but also substantially reduces the
possibilities of the family members or other relatives contesting the validity of the
Will.
8. Is the presence of witnesses required for all types of wills in India?
As per the provisions of the Indian Succession Act, Wills are required to have a
minimum of two witnesses attesting to the Will which also provides a legal sanctity
and greater authenticity to the document
How to Make a Will
You can get a will prepared through a lawyer or online. Currently, several banks in
India have tie-ups with legal firms that specialize in preparing and executing these
documents.
Hiring a lawyer to help with the preparation of a testament is often preferable as it
would ensure that the document is legally valid, and your heirs respect your wishes
after your death. Moreover, lawyers who help in the process often act as executors,
too, and this can ensure the smooth distribution of your possessions after your
death. However, online will preparation tools and websites are a convenient
alternative as you do not have to physically visit a lawyer’s offices.
It is, however, a good idea to get a legal opinion regarding your will even if you
have prepared it online. This can help ensure that there are no omissions or errors
in the document so that it is legally valid in a court of law if there is a dispute at a
later date.
Some Things to Keep in Mind When Making a Will
There are a few additional details that you need to keep in mind to ensure that your
wishes, as mentioned in the will, are followed after your death:
Registering the Will
Once you have prepared your will, you should consider getting your will registered
with a sub-registrar even though this is not a mandatory requirement. Registration
ensures the legal validity of the document, and its genuineness can be easily upheld
in court if there is a dispute. The key document you need to submit for registration
is a Doctor’s Certificate stating that you are mentally competent. Additionally, you
need 2 witnesses to confirm your sound mental state and verify that the document
was not prepared under any sort of coercion or duress.
Safe Custody of Will
It is always advisable that you keep multiple copies of your will in safe custody.
Typically, the executor of the testament, such as your lawyer, as well as you should
have separate sealed copies under lock and key. Additionally, if you have registered
the document, a sealed copy of your testament is kept by the Registrar’s office.
Having multiple copies increases the possibility that at least one of the copies of the
documents survives, and your wishes are respected after your death.
Beneficiary Cannot be the Witness of a Will
Under the current legal norms for the preparation of this document, the beneficiary
and witness of a will must be separate individuals. If this is not the case, the
document cannot be proven as legally valid in court if its authenticity is disputed. If
the authenticity of your testament cannot be upheld in court, your wishes as
mentioned in the document cannot be carried out by the executor.
Multiple Changes/Revocation are Allowed
You can legally make changes to the testament multiple times or even revoke and
replace an existing will with a new one any number of times before your death.
Small changes such as additions to the existing document can be made using a
document known as a codicil. Since a codicil has the same legal validity as the
original testament, it has to be prepared and registered using the same procedure.
Revocation of a will refers to the complete cancellation of the existing document by
the testator, and the submission of a replacement usually follows this. In the case of
alterations/revocation, the final version of the testament prepared and/or registered
before your death is considered your final will and testament. All previous versions
of the document are considered null and void.
