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Will Drafting in India: Complete Guide to Laws, Process & Pitfalls

  • Will drafting is the process of creating a legally enforceable document that transcends to making sure your property and wealth are transferred to your heirs in accordance with your wishes after you die. 
  • Wills help to limit the possibility of heirs conflict, save some time, avoid agitating litigation, and best enable you locate the testator’s true intention. 
  • In India, the Indian Succession Act, 1925 governs the making and execution of wills, and other procedural and registration laws also apply to wills. 
  • Careful execution by witnesses, executor appointment, and probate helps to bring authenticity and generally enforceability of the will.
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Introduction

What is a Will Drafting?

Types of Wills in India

Who can make a Will?

Process

Why Choose Diligence Certificaions?

Introduction

Once there were two brothers in Delhi who approached a lawyer about a bitter dispute. Their father, now deceased, had given a verbal direction as to who to god a good what honour he’d left the house in which they lived. Alas, he never got around to doing a proper will. He’d assumed his sons would equitably divide up the assets. The matter dragged on for more than six years and cost both brothers money, peace of mind and, in the end, their relationship.

This kind of saga is frequently seen in Indian families. Families spend a lifetime acquiring wealth, property, land, gold, and businesses but often forget the key step to making a will. There is always time. They assume the succession laws would apply if there was no will. In the absence of a proper will there will often be disputes, mental anguish, and avoided court cases. This is why writing is not a privilege for wealthy people but a necessity for every individual.

What Is a Will Drafting?

A will drafting is a legally binding document in which one party (the testator) expresses to a second party how their property and possessions are to be distributed once the testator has died. Unlike other types of documents, a will can only be effective upon the death of the testator, meaning that the testator has full control of all of his/her property to use during his/her life. 

There are some important characteristics of a will:

  • Composes the last wishes of the testator and eliminates any confusion after death. 
  • Provides freedom for persons to make reasoned decisions about distribution while avoiding compulsory succession laws.
  • A will can be handwritten or typewritten if it is legible and signed.
  • A will may be changed, revised, or revoked at any time during the life of the testator. 
  • Registration is encouraged, not a requirement. Registration of a will significantly increases the will’s legitimacy and makes it easier for the courts. 

In conclusion, a will is more than a legal document — it is the voice of the deceased and often gives guidance to loved ones long after the testator has passed.

Parties to a Will Drafting

A will involves several important parties, each with a particular role:

  • Testator – A person who makes a will and specifies how assets should be distributed.
  • Beneficiaries – Those who will receive the assets. Beneficiaries can be family, friends, charities, etc.
  • Executor – An individual that the testator trusts to take care of the formalities of executing the will as well as transferring property generally without complication. 
  • Trustee – Sometimes, the will cannot simply distribute encumbered property to a beneficiary without oversight (for example, since the beneficiary is a minor). Thus, the property must be put in trust for the benefit of the minor with a trustee to oversee administration of the asset. 
  • Legal Guardian – If the will names minor children as beneficiaries, the will should also appoint a guardian to control their property while they are underage. 

Careful consideration needs to be taken when determining each of these roles. For example, many families prefer to appoint an executor who is neutral, sometimes a family solicitor to avoid conflicts amongst the heirs.

Types of Wills in India

The Indian Succession Act, 1925 categorizes wills in India under the following two broad categories:

  • Privileged Will – This type of will pertains to soldiers, airmen, or mariners engaged in war-like operations or emergencies. Privileged wills are less formal and may even be oral, depending on the situation and risk. 
  • Unprivileged Will – All the wills that do not qualify as privileged wills fall into this category. They require more formalities such as signature, witnesses, and will often require probate for a will to be executed. 

In reality, most people make unprivileged wills. Its still always better to follow all the procedures allowed under law; even if not wholly necessary, it makes the entire document stronger in the event of a dispute.

Essentials of a Valid Will

For a will to be valid in India, it must satisfy certain conditions:

  • It must take effect only after the testator’s death, not before.
  • The document should clearly express the intention of distribution without vague or confusing language.
  • The testator must be of sound mind, not under influence of alcohol, coercion, or mental illness at the time of drafting.
  • The will should be created with free consent without fraud or undue influence.
  • It should be capable of being revoked or altered by the testator at any point before death.

A valid will essentially reflects a clear, conscious, and voluntary decision, leaving no room for doubt about the testator’s wishes.

Assets Covered in a Will

A will is considered to be one of the most flexible legal documents as it can include both movable and immovable property. The property in a will could be: 

  • Real property; owned land, houses, and flats. 
  • Jewellery; gold, silver, and valuable artefacts. 
  • Bank deposits; fixed deposits, bonds, and mutual funds. 
  • Insurance policies and retirement benefits (gratuity or pension). 
  • Intellectual property; patents, copyrights, or trademarks. 
  • Collectibles; paintings, antiques, or heirlooms. 

It is best to provide an exhaustive list, to ensure that a gap doesn’t enter, and now even digital property, like cryptocurrency, or income from an on-line business, can be specified, so notion of will detail is very much alive in the modern day digital and on-line world. 

Laws Governing Transfer of Property Through a Will

The laws of India that govern the transfer of property through a will are a number of interrelated statutes.Indian Succession Act, 1925 – The primary law governing wills, probate, and succession.

  • Code of Civil Procedure, 1908 – Governs procedural aspects of probate petitions and execution.
  • Indian Registration Act, 1908 – Registration of wills is optional. This statute outlines the process of registration of wills.
  • Indian Stamp Act, 1899 – governed the stamp duties on a number of documents and instruments. Wills are generally excluded from stamp duties. 

These statutes together warrant a comprehensive framework for wills to be recognised and enforced in the courts.

Who Can Make a Will?

In India, Section 59 of the Indian Succession Act, 1925 states that: 

  • Any person over the age of 18 years can make a will. 
  • However, the person must be of sound mind and comprehend what he is doing.
  • A person who is mentally ill may make a will in a lucid moment where they can think clearly.
  • Wills made while intoxicated, severely sick or coercively are not valid.

The law is meant to ensure that only mentally capable persons can lawfully and respectively realize their Right to direct how their property is distributed.

Process of Making and Execution of a Will

Making a will entails these steps: 

  • Drafting – A clear statement of their property, beneficiaries and sharing of their property. 
  • Witnessing – The will must be signed in front of at least two independent witnesses.
  • Executor – Appointing an appropriate executor to carry out the wishes of the testator.
  • Registration – Even though it is optional; registration will solve any lack of authenticity.
  • Probate – After the death of the testator, the executor must apply for probate from the court. Probate is the process by which the executor can begin administering the will.

The execution of a will removes any ambiguity of succession and unnecessary court proceedings.

Will Drafting

Probate of a Will

Probate is a legal acknowledgment a competent court will issue that declares a will is valid and the will is genuine. The executor files a petition for probate along with a list of property, beneficiaries, and the will. The court reviews a petition for probate and holds a hearing. After the hearing, the court will issue a probate which serves as evidence the will is valid.

In India, there are many states such as Maharashtra, where probate will be required for (a) a will with immovable property located in a phased area. Probate becomes an important part of the process for execution.

Details to Include in a Will

  • A well-structured will must contain: 
  • Full particulars of the testator consisting of name, age and address.
  • A statement of sound mind and intention.
  • The identity and datils of the beneficiaries and their relation to the testator.
  • The name and details of the executor (along with their age).
  • A comprehensive account of the assets and/or property described in the will.
  • The specific share to be given to each beneficiary.
  • Appointment of a guardian for a minor.
  • Instructions for casual or special wishes.
  • The testator’s signature along with the date and location of the signature.
  • Attestation from at least two witnesses.

Mistakes to Avoid in Will Drafting

There are a number of mistakes that can diminish a will:

  • Not providing a comprehensive list of assets.
  • Failing to revoke or update expired wills.
  • Forgetting to address changes in property forma resale or purchase.
  • Not assigning a guardian for minor beneficiaries.
  • Using vague or ambiguous language that leads to disputes.

Mistakes like these are easy to avoid, given the right professional advice.

Grounds for Challenging a Will

There are a number of different grounds to challenge a will, for example:

  • It was executed in coercion, undue influence, and/or fraud.
  • There were suspicious circumstances surrounding its execution.
  • The testator lacked mental capacity at the time of the document.
  • There are no valid signatures of the testator (personal signature) and the witnesses.
  • The testator did not know or understand the content at the time of his or her signature.

Although will challenges are difficult to pursue and win, courts take these grounds seriously to provide fair outcomes.

Intestate Succession

If a person dies without a valid will their property will be distributed according to the intestate succession rules outlined in law:

  • Hindus, Sikhs, Jains, Buddhists – Will be governed by the Hindu Succession Act, 1956.
  • Muslims – Will be governed by Shariat law which, in addition, governs the method of inheritance.
  • Christians, Parsis, and others – Will be governed by the Indian Succession Act, 1925.

In such cases, the division of property will follow statutory rules that may not represent the deceased’s personal wishes.

Revocation of a Will

A will may be revoked in the following ways: 

  • Destruction – which includes tearing, burning, or otherwise destroying it.
  • Making an new will – the newest will will always prevail.
  • Marriage of the testator – which automatically revokes previous wills.
  • Express declaration of revocation in writing.

The Role of Diligence Certifications in Drafting Will

A diligence certifications is a professional review to a will being drafted accurately, with the legal formalities observed. A diligence certifications assures that the testator was mentally sound, the will complied with legal requirements, and there are no hidden ambiguities that might cause arguments in the future.

Although Indian law does not require it, many families choose to obtain diligence certifications as a best practice—particularly when the estate comprises many properties, big assets, or stakes in a business. A diligence certifications adds weight to the document at probate stage and alleviates challenges by the heirs.

Conclusion

Drafting a will is a fundamental part of estate planning. A well-crafted will ensures that wealth is transferred with ease and avoids discussion, litigation, disputes, and stress among family grievances. Whether it be a home, gold, stock shares in a business, or digital assets, when we write our intentions in a will; we promote understanding and peace of mind for future generations.

Today, many families are becoming more nuclear, and even more families share their assets across states and countries. Having a valid will is no longer an option, it is a duty each of us owe to our loved ones.

Get peace of mind for your family’s future today, make an appointment with a professional and draw up a will — because uncertainty doesn’t give notice.

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Frequently Asked Questions

No, registration is not compulsory, a registered will has more veracity and is less likely to result in disputes though. An unregistered will is also valid, as long as it is executed correctly. 

The property is divided according to the intestate succession and the law in operation such as the Hindu Succession Act or Shariat law. No personal wishes are taken into account.

The property is divided according to the intestate succession and the law in operation such as the Hindu Succession Act or Shariat law. No personal wishes are taken into account.

Yes, a will can be both handwritten or typed. The most important requirement is clarity of intention, and the owing testators signatures. 

Probate is a seal of approval by the court to certify the will is genuine. It is a legal requirement in many states before the will can be administered. 

Yes a testator can change their will or revoke it at any time during their life, provided they are of sound mind. 

No, only persons aged 18 years or over and of sound mind can make a will. 

In India it normally takes between 6 - 12 months for probate proceedings to take place. However, if the property is complicated, or it was in a different jurisdiction, or if anyone contested the Will, it may take longer. 

An executor is a person that ensures that the testator's wishes are adhered to, that the property is distributed and that their legal formalities are complete. 

Yes it can, however, it is much harder to contest a Will after a probate is granted; that is because, at that point, the Court has already confirmed that the Will is valid.

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