Understanding Wills in India: Key Legal Aspects & FAQs

Summary: Creating a valid Will in India requires specific guidelines, though no particular language is mandated. A valid Will should express the testator’s intent to distribute assets upon death, be made by an individual over 18, of sound mind, and without any coercion. The testator should be fully aware of the content and voluntarily approve it. A Will is revocable anytime during the testator’s lifetime and only takes effect upon their death. An executor is appointed to execute the testator’s wishes as per the Will’s directions. Registration is optional but can safeguard against disputes. Essential elements for a Will include the testator’s signature or mark, attestation by two witnesses, and a clear property description. A codicil allows for amendments to the Will. Probate, required in certain Indian cities, certifies the authenticity of a Will and legitimizes actions taken by the executor post the testator’s death. Intestate succession applies when a person dies without a Will, where a succession certificate is issued for handling debts and securities. A Letter of Administration is granted under specific circumstances, such as when there is no executor or the executor is unwilling or unable to act. These legal instruments help ensure smooth property transfer and clear succession in India. Also Read: Wills in India – Understanding Types, Laws and Benefits

1. ESSENTIAL PRINCIPLES GOVERNING WILLS-

• The law does not prescribe any particular language in which a Will has to be written. However, the Will must disclose the intention of the testator/testatrix in making dispositions of his or her property, to come into effect at death.
• Must be made by an individual above 18 years of age and who is of sound mind.
• Must be made voluntarily – free consent of the testator/testatrix is of paramount importance.
• Testator/Testatrix must have knowledge of its contents and must have approved of the same.
• A Will should not be made by fraud or undue influence

2. COMMON QUESTIONS RELATING TO A WILL –

• IS A WILL REVOCABLE ONCE MADE?

A Will can be revoked at any time by the testator/testatrix during his/her lifetime.

• WHEN DOES THE WILL TAKE EFFECT?

After the date of death of the testator/testatrix.

• WHO IS AN EXECUTOR/EXECUTRIX?

In every Will there is a person named as the ‘Executor’/‘Executrix’.  This person is entrusted with the duty to carry out the wishes of the deceased. The Will also provides the executor(s) with instructions on how the estate should be distributed.

• IS IT MANDATORY TO REGISTER A WILL?

No. However, if it is registered with the Sub-registrar under the Indian Registration Act, 1908, it would prevent the same from being challenged after the death of the testator/testatrix.

3. REQUIREMENTS OF A VALID WILL & EXECUTION REQUIREMENTS –

• A Will must be made in writing.
• The testator/testatrix must sign the Will or affix his/her mark (thumb impression etc.) to the Will.
• The testator/testatrix should sign or affix his/her mark but the attesting witness is required to sign the Will.
• A Will must be attested by two or more witnesses and each of them must have seen the testator/testatrix sign.
• No stamp duty is payable on Wills.
• Will must contain a description of the property to be bequeathed. It is not necessary to give all details of the property as long as the property can be identified by the description.

4. WHAT IS A CODICIL:

• A codicil amends the Will made by the testator/testatrix.

5. PROBATE:

• What is a probate?

Probate certifies the genuineness of a Will.

A probate is mandatory when the Will has been made in any of the Presidency towns viz. Kolkata, Chennai and Mumbai or if the immovable property is situated in such towns.

• What is the effect of a probate?

When a probate is granted, it establishes the Will from the death of the testator/testatrix and renders valid all intermediate acts of the Executor/Executrix.

6. WHAT IS INTESTATE SUCCESSION?

Succession of the person dying without leaving a Will, is called Intestate Succession

7. WHAT IS A SUCCESSION CERTIFICATE?

Succession Certificate is granted to the heir of the intestate individual in respect of his/her debts and securities.

8. WHAT IS A LETTER OF ADMINISTRATION?

Letter of Administration is granted:

1. On the renunciation or failure on the part of the executor to accept executorship within the prescribed time period;

2. When no executor is appointed in the Will;

3. When no Will has been made by the deceased;

4. When the executor refuses to act or is legally incapable to do so; and

5. When the executor dies prior to administration of the estate.