Will in India: Registration, Witnesses, Validity, Challenge, Revocation and Probate

What is a Will?

Section 2(h) of the Indian Succession Act, 1925 defines a Will as the legal declaration of the intention of a testator with respect to property that the testator desires to be carried into effect after death. A Will is therefore ambulatory: it ordinarily has no operative effect as a testamentary disposition during the testator's lifetime and may be changed or revoked while the testator remains competent.

Under section 59, every person of sound mind who is not a minor may dispose of property by Will, subject to the applicable succession law. A person ordinarily incapable because of illness or mental disorder may still make a Will during a lucid interval if capable of understanding what is being done. A person who, because of intoxication, illness or another cause, cannot understand the act cannot validly make a Will at that time.

Essential contents and safeguards for a valid Will

The statute does not prescribe a single compulsory drafting format, but a carefully prepared Will should clearly identify the testator, beneficiaries, property and testamentary intention. Good drafting reduces uncertainty and future disputes.

A Will can be written on ordinary paper; there is no general central law requiring stamp paper for execution of a Will. It is prudent to number pages, avoid unexplained blanks or alterations and have the testator sign each page.

Signature and witnesses: section 63 requirements

For an unprivileged Will, section 63 of the Indian Succession Act lays down the execution and attestation requirements. In substance:

• The testator must sign or affix a mark to the Will, or another person may sign in the testator's presence and by the testator's direction.
• The signature or mark must be placed so that it appears intended to give effect to the document as a Will.
• The Will must be attested by two or more witnesses.
• Each witness must have seen the testator sign or affix the mark, or seen another person sign in the testator's presence and by direction, or received a personal acknowledgment of that signature or mark.
• Each witness must sign the Will in the presence of the testator.
• The witnesses need not both be present at the same time, and no particular form of attestation is prescribed.

As a practical safeguard, an attesting witness should preferably not be a beneficiary. Section 67 of the Succession Act can affect a bequest to an attesting witness even though the attestation itself does not necessarily become invalid.

Is registration of a Will compulsory?

No. Section 18(e) of the Registration Act, 1908 makes registration of a Will optional. Section 27 further provides that a Will may be presented for registration or deposited at any time.

Registration can provide an additional evidentiary circumstance and secure an official record, but registration does not by itself prove that a Will is genuine or valid. Testamentary capacity, free will, due execution and attestation must still be established where disputed.

Can a Will be cancelled, revoked or modified?

Yes. Under section 62, a Will may be revoked or altered by the maker at any time while competent to dispose of property by Will. A modification may be made through a properly executed codicil, or the testator may execute a fresh Will expressly revoking earlier Wills and codicils.

For an unprivileged Will, section 70 recognizes revocation by another Will or codicil, by a writing declaring an intention to revoke and executed with Will formalities, or by destruction such as burning or tearing done by the testator, or by another person in the testator's presence and direction, with the intention to revoke.

Unexplained handwritten alterations after execution may create serious evidentiary problems. A fresh Will or formally executed codicil is generally safer than informal amendments.

Who can challenge a Will and on what grounds?

A Will is usually contested by a person whose legal or beneficial interest in the estate would be affected if the Will is accepted. The exact procedure depends on whether the dispute arises in probate proceedings, a civil suit or another succession proceeding.

Common legal grounds include:

• Lack of testamentary capacity: the testator did not understand the nature and effect of the Will or the property and claims involved.
• Fraud, coercion or importunity: section 61 makes a Will or part of a Will void where caused by fraud, coercion or such importunity as takes away the testator's free agency.
• Forgery or fabrication: the signature, mark or document is not genuine.
• Improper execution or attestation: statutory requirements under section 63 were not satisfied.
• Suspicious circumstances: circumstances surrounding execution may require the propounder to remove legitimate suspicion to the satisfaction of the court.
• Later Will or revocation: a later valid testamentary instrument may supersede the document relied upon.
• Lack of title or disposable interest: the testator cannot pass by Will a greater interest than the testator was legally entitled to dispose of.

The Supreme Court has repeatedly emphasized that even a registered Will must be proved in accordance with statutory requirements, and that registration alone does not eliminate suspicious circumstances.

What is probate of a Will?

Probate is a judicial grant relating to a Will made to an executor appointed by that Will. It is not correctly described as a simple "suit for probation". Probate proceedings are governed by the Indian Succession Act and the procedural rules of the competent court.

Under section 222, probate is granted only to an executor appointed by the Will. Under section 227, probate, when granted, establishes the Will from the death of the testator and validates intermediate acts of the executor as such.

Privileged and unprivileged Wills

Important terms relating to Wills