A Will is a crucial legal document that ensures the distribution of a deceased person’s assets according to their wishes.

In India, the process of creating a valid Will is governed by the Indian Succession Act, 1925.

Understanding who can make a Will and the necessary legal requirements helps prevent potential disputes and ensures a smooth probate process.

Who Can Make A Will Under Indian Law?

1. Age Requirement

Under the Indian Succession Act, any person who is 18 years or older and of sound mind can create a legally valid Will. However, minors cannot execute a Will unless they are married and are considered adults under personal laws.

2. Mental Capacity

The Testator (the person making the Will) must be of sound mind at the time of writing the Will. This means:

• The Testator must understand the legal terms of the Will.
• They should be able to make decisions regarding their assets owned and how they should be distributed.
• If a person lacks mental capacity due to illness or undue influence, the will can be legally challenged in the probate court.

3. Free Consent

A valid Will must be made with free consent, without coercion, fraud, or undue influence from any family member or interested party.

Key Legal Requirements For A Valid Will

To ensure the Will’s validity, the following conditions must be met:

1. Written Document

A Will can be typed or written in the Testator's hand, but it must be a written document to be considered legally binding. While oral Wills are permitted under specific conditions for armed forces personnel, they are generally not recommended due to difficulties in proving them.

2. Signed by the Testator

The will must be signed by the Testator to indicate their approval of the contents. If the Testator is unable to sign, they can authorise someone to sign on their behalf in the presence of two or more Witnesses.

3. Witnesses to the Will

A valid Will must be attested by at least two Witnesses who:

• Are disinterested Witnesses (not Beneficiaries of the Will).
• Can confirm that the Testator signed the Will voluntarily and with full testamentary capacity.

4. Registration of the Will

While registering a Will with the Sub-Registrar’s Office is not mandatory, it can add legal credibility. A registered Will is harder to legally challenge and offers greater security against fraud.

Types Of Wills In India

1. Mutual Wills and Mirror Wills

• Mutual Wills: Typically made by a married couple, stating that the surviving spouse will inherit the other’s property.
• Mirror Wills: Similar to mutual Wills, but each spouse creates a separate Will that reflects the same wishes.

2. Holographic Wills

A holographic Will is a handwritten Will signed by the Testator without Witnesses. While it is legally valid, it is more likely to be legally challenged due to lack of verification.

3. Conditional Wills

A Will that comes into effect only under specific circumstances, such as reaching a certain age or upon the happening of an event.

4. Joint Wills

A single document created by two individuals, typically spouses, that dictates how their property will be distributed upon their death.

Role Of The Probate Court In Will Execution

The probate process involves:

• Validating the Will in the probate court.
• Ensuring the Executor follows the Testator’s wishes.
• Distributing personal property and other financial assets as per the Will.
• Handling disputes raised by legal heirs or interested parties.

If a Will is not properly executed, it may be declared invalid, and intestate succession laws will apply.

Can A Will Be Changed Or Revoked?

1. Creating a New Will

If a Testator writes a new Will, it automatically revokes the previous Wills unless stated otherwise.

2. Codicils

A codicil is an additional legal document that modifies a Will without replacing it.

3. Destruction of the Will

Physically destroying the original document can revoke it. However, this must be done intentionally by the person making the Will.

Potential Disputes & Challenges To A Will

A Will can be contested based on:

• Lack of testamentary capacity.
• Fraud or undue influence.
• Non-compliance with legal requirements.
• Presence of multiple conflicting Wills.

The probate court will assess these factors before issuing a court order for final distribution of the estate.

The Bottom Line: How Yellow Can Help

Anyone of sound mind and legal age can make a valid Will in India. Ensuring that the Will meets all legal requirements under the Indian Succession Act helps prevent legal complications.

Seeking legal counsel can also help legal heirs understand the legal process and ensure smooth execution of the deceased person’s final wishes.

Whether it’s a first Will, an update due to new assets, or a safeguard against potential disputes, a well-drafted Will is essential for proper execution and estate planning.

At Yellow, we can help you with all aspects of estate planning, including Wills, Trusts, Powers of Attorney, Gift Deeds, Legal Heir and Succession Certificates, and Living Wills. We also offer post-demise and asset transfer services. Our team of legal experts has more than 50 years of combined experience.