Wills In India: Essential Insights And Guidelines

KEY TAKEAWAYS

• A will is a legal document used to express the intent of the testator regarding the inheritance and succession of his properties after his death.
• A will can be written even in a piece of paper and would still be equally valid to one written in a stamp paper.
• It is not mandatory in India to register a will, but doing so adds safeguards to your will against it being destroyed or tampered with.
• An executor is a person who will execute the bequests mentioned in the will. Such a person can be mentioned in the will, or if not mentioned in the will, can be appointed by the Court upon application for the same by the legal heirs.
• The bequests in a will must not be perpetual or impossible and must be legal and moral in nature.

INTRODUCTION

The death of a person leads to all their property, both movable and immovable, being acquired by their legal heirs in accordance with the relevant succession laws. When the family is complex and large, this could lead to disputes and other possible complications. There could be people whom the deceased would not have wanted to allow inheriting their property. There could also be heirs claiming their share although they are only a distant relative to the deceased. The deceased could have been managing a business whose shares must now be divided between the legal heirs, which could result in its ruin.

A possible way to alleviate these issues is if the deceased individual had created a will at any point of their lifetime. The deceased could specify their desires on which property can be inherited by whom and who can inherit it after their lifetime and so on. This is particularly useful in solving disputes between the family members as the wishes of the deceased will be respected as long as they are not against the law or against morality. A will can be made in any format, even in handwriting, and it will be legally binding. Once the authenticity of the will is proved, the bequests mentioned in the will can be executed. 

A will is therefore a legal document that expresses the desires of a deceased person pertaining to the distribution and management of their self acquired wealth and property. This is useful for the running of family businesses as shares could be inherited by people whom the testator trusts with their business so as to ensure the efficient conduct of the same. This need to write a will so as to dispose of their estates to the people they chose was realized a long time ago, and has been in practice since the ancient Greeks.

Although at the time the states only permitted select people to write a will, particularly those who were close to the state, this was later changed and all citizens were equally bestowed with the right to dispose of their property through a will, albeit subject to some restrictions. This privilege was mostly used by those men who had no children or relatives to transfer their possessions to their friends or to some other person who they trusted. A major change that has happened with respect to the wills and testaments is that property could now be transferred to women, which was something that was earlier barred by the law.

In India, the laws pertaining to testamentary succession are contained in the Indian Succession Act of 1925. This legislation allows all Indians who are not minors to create a will, irrespective of any disability they may have like being deaf, dumb, blind, or generally insane, as long as they understand the consequences of the action they are about to undertake. This means that as long as the individual is of sound mind and understanding at the time of creation of the will, they are permitted to do so. Even a generally insane person may create a will at a time when they are of sound mind. A will can be created for any property that is self acquired and the testator is under the complete ownership of.

CAN A PERSON MAKE TWO WILLS?

Matters pertaining to will and testamentary succession are contained in the Indian Succession Act of 1925. As per section 59 of the same act, any person who is not a minor may create a will irrespective of any disability they may possess, as long as they are of sound mind. This means that a deaf, dumb, or blind person may create a will if they are aware of what they are doing. Also, a generally insane person may create a will at a time when they are of sound mind. The law therefore vests the right to create a will to every citizen of the country.

While the law does allow the creation of two wills in India, it is important to note that there are certain restrictions associated with it. Section 70 of the Indian Succession Act pertains to the revocation of wills, wherein it is clearly stated that a person may revoke a will by creating another will. This means that a person can create another will after the first will where it will be declared that the first will is revoked through this second will, and may then list out the desires of the testator with the necessary changes they wish to implement.

A second will can be created not just for the purpose of invalidating the first, it is also possible to create multiple wills for multiple assets. This means that it is perfectly legal to create a second will for a separate property, although it is not advisable to do so. Creating multiple wills for multiple properties may cause confusion and dispute among the beneficiaries and these wills might also contain contradictory terms that will require expending more efforts to clear it up. It is considered better to write a single for all the properties that the testator wishes to transfer upon his death.

CAN A WILL BE REGISTERED ANYWHERE IN INDIA?

The Indian Succession Act of 1925 lists out the rules pertaining to wills and testamentary succession. It states in its section 59 that any person who is not a minor and is of sound mind may create irrespective of any disability they possess as long as they are aware of the consequences of the action they are about to undertake. Although the act further lists out the other rules related to a will, it does not specify in any of its sections the jurisdiction under which a will must be registered.

But, if section 371 is taken into consideration, it specifies that those Courts of the District Judge shall have jurisdiction to issue a succession certificate that are located at the place of permanent residence of the testator, and in case the testator did not have a fixed place of residence, then the District Judge under whose jurisdiction any of the properties of the testator are found shall have jurisdiction.

If read with this section in mind, it can be understood that a will must be registered at the sub-registrar office at the place of permanent residence of the testator, and in case they do not have a fixed place of residence, then at any of the places where they may own a property.

CAN A WILL BE CHALLENGED IN INDIA?

The Indian Succession Act of 1925 not only lists out the rules to prevent any disputes related to a will, it also mentions the grounds under which a will can be challenged by a legal heir. It must be noted that a will cannot be challenged simply because of the fact that the legal heir was not bequeathed any property, as that is up to the owner of the property to decide who shall enjoy his property upon his death.

Section 59 of the act, which determines the qualifications of an individual to create a will, also gives us grounds that can be used to challenge the will. If a person is a minor or if at the time of creation of the will the person is not of sound mind, either due to intoxication or some other illness, or does not understand the consequences of their actions, they are not qualified to write a will. Therefore if an individual may challenge a will by claiming that the testator was not qualified to create a will in the first place.

Similarly, section 61 also provides us with grounds that can make a will void. It prescribes that if a will has been created by way of fraud or deceit, or if the testator was forced to create this will, which in both cases point towards the testator not writing the will out of their own volition, makes the will void. Every individual has the right to distribute their properties to anyone they choose, and therefore such right cannot be curtailed.

Section 63 of the same act gives us more grounds which can be used to challenge a will. It prescribes three rules to be fulfilled to execute a will:

1)    The will must contain the signature or the mark of the testator, or of some other person who is signing it on behalf of the testator.

2)    This signature of the testator must be present on the will pointing towards the intention of the testator to give effect or validity to this writing as a will.

3)    Two or more witnesses are required to attest the authenticity of the will, and they must have seen the testator or the person appointed on behalf of him sign the will, or must have received personal acknowledgement from the testator about the same. These witnesses must also sign the will in the presence of the testator.

If any of these conditions are not met, they will make the will void, and therefore these serve as effective grounds that can be used to challenge the authenticity of a will.

Also, if the terms of a will are ambiguous and unclear, such a will is void as per section 89 of the Indian Succession Act. The contents of a will must be written in such a way that no doubt can arise about the terms and intentions of the will. Every little term should be given in great detail to avoid ambiguity, which if not conformed to, can render the will void.

Similarly, if the terms of a will are such that the property is bequeathed to the successors of the testator in an unending way, such bequest shall be deemed invalid, as laid down by section 114 of this act. It is not possible for the testator to bequeath a property to his son, then after his lifetime to his grandson, and then after his lifetime to his great grandson and so on. Such a bequest is invalid and is a significant ground for challenging a will.

If the bequest mentioned in the will is to be executed upon the fulfilment of an impossible condition, section 126 declares such bequest as void. Similarly, section 127 of the same act declares that if the bequest is upon a condition that is illegal or immoral in nature, then such bequest shall also be declared invalid. Therefore the terms of a bequest must be completely legal and moral in nature and must not infringe the rights of another individual upon its fulfilment, to be considered valid.

A will can be challenged by raising doubts against the authenticity of the signatures in it, either of the testator or the witnesses. The complainant may also claim that the will was not executed properly, or if the will displays any kind of suspicious features relating to its creation and execution. It must be noted that allegations like that of a forged signature are significantly weakened if the will in question was registered.

The Supreme Court in the case of Shivakumar v. Sharanabasappa (2020) has held that a will can be challenged if there is any sign of suspicious or abnormal features pertaining to its creation, like that of a forged signature or the testator displaying qualities that bar them from creating a will, like not being of sound mind, or being a minor, etc. Therefore if such doubts exist against the authenticity of the will, the burden of proof is on the defendant to properly address these doubts and prove its authenticity.

CAN A WILL BE CHANGED?

A will is a written document that expresses the desires of the testator pertaining to the transfer of his properties after his death. It helps avoid any dispute or confusion regarding the inheritors of the property. The laws pertaining to the same are given in the Indian Succession Act of 1925, which allows all Indians to create a will, provided they are not a minor and are of sound mind at the time of creation of the will. This allows even people with disabilities like blindness, deafness, etc., to create a will as long as they are aware of the consequences of the actions they are about to undertake.

If a person desires to change the terms of the will he previously created and registered, he may do so by writing another will wherein the previous will is declared invalid, and the new or changed terms and conditions can be added to this new will pertaining to the transfer of his properties after his death. This is in accordance with section 70 of the Indian Succession Act, which prescribes the same method to revoke a will.

CAN A WILL BE REVOKED?

A person writes a will to express their desire regarding the transfer and succession of their property after their death, and can also prescribe certain conditions whose non-fulfilment can render the bequest invalid, provided such conditions are legal and moral in nature. Any person can write such a will as long as they are not a minor or are not of sound mind. Even a deaf, blind, dumb, or generally insane person can write a will, as long the consequences of their actions are clear to them.

If an individual, after registering their will, due to specific personal conditions desires to revoke this will, they have every right to do so. Sections 70 and 72 lists out the procedures to revoke an unprivileged and privileged will respectively. A person may revoke an unprivileged will through the following ways:

1)    By marriage;

2)    By another will or codicil;

3)    By some writing that declares the intention of the testator to revoke this previous will and executed in a manner in which an unprivileged will is to be executed;

4)    Or by burning, tearing, or otherwise destroying the will by the testator or by another person acting on his behalf, with the intention to revoke the will.

A privileged will can be revoked in the following ways:

1)    By an unprivileged will or codicil;

2)    By any action of the testator expressing their intent to revoke the will and executed in the same manner as a privileged will;

3)    Or by burning, tearing, or otherwise destroying the will by the testator or some person appointed on behalf of him, with the intention to revoke it.

A revoked unprivileged will can be revived later by the testator if he so desires, subject to certain conditions as prescribed in section 73 of the same act. It can only be revived by its re-execution or by a codicil executed in the prescribed manner and showing the intention to revive the earlier revoked will. If an unprivileged will was first partly revoked and later revoked, an attempt to revive the will as per the aforementioned procedure shall only revive the part that was revoked to form the whole revocation of the will, and the part of the will that was first revoked shall not be affected by this, unless an intention for the same is present in the will or codicil.

CAN A WILL BE MADE FOR AN ANCESTRAL PROPERTY?

The Hindu Succession Act of 1956 gives us a definition of an ancestral property as a property that has been passed on for four generations by the male ancestors in a family, and has not been divided, sold, or partitioned during this time. Such a property loses its status as an ancestral property if it was sold, divided, or partitioned during this time. The next three generations along with the current generation of successors shall have claim towards this property, and their claim will be on a per stripe basis, meaning that the prior generation shall have a prior claim towards this property. The newer generation may claim whatever is left after the prior generation has claimed their share.

Since four generations of successors have a claim on this property, no single coparcener can sell this property or write a will on it. If any one of the coparceners desires to sell the property, he requires express consent from all the other coparceners. It is therefore not possible to write a will on an ancestral property. However, an individual can write a will on their own self acquired property. Therefore it is possible for them to file a partition suit in the civil court so that the court partitions the ancestral property, which after partition becomes a self acquired property, and once they receive their share and its title under their name, they are free to write a will on it.

CAN A WILL BE MADE WITHOUT WITNESSES OR WITH ONLY ONE?

A will is written so that the testator can express their desires regarding the inheritance of their property after their death. Although the Indian Succession Act of 1925 allows anyone to write a will as long as they are not a minor and are of sound mind during its creation, it is still possible to challenge a will for its authenticity even if the above qualifications are met.

Section 63 of the act prescribes the procedure to execute a will, and to deem it valid. It prescribes that the signature of the testator or any person under his direction is necessary, along with the intention to give effect to the will. Section 63 also prescribes that a minimum of two witnesses are required to attest to the authenticity of the will. They must have witnessed the testator or any person acting on his behalf sign the will, or must have received personal acknowledgement from the testator about the same, and must also affix their signature on the will in presence of the testator.

CAN A WILL BE MADE WITHOUT AN EXECUTOR?

When a person writes a will to express their desires on who shall inherit their property after their death, they usually mention certain executors, who are persons who will execute the terms of the will after their death. Section 222 of the Indian Succession Act of 1925 mandates that probate of a will can be granted only to the executor of the will. Section 254 of the same act also prescribes that in the event of the executor mentioned in the will not being available or is not willing to be the executor, the Court may if it deems fit, appoint a person to be its executor with the interest and safety of the estates in mind.

The Indian Succession Act does not mandate that an executor must be appointed during the creation of a will. The conditions to be met to qualify as a will are that the signature of the testator must be present, it should be affixed in such a manner as to show the intention of the testator to give effect to it, and the signatures of the two witnesses who attest to the authenticity of the will. Since it is not required that an executor be mentioned for it to qualify as a will, it can be said that an executor is not necessary when creating a will.

If a will is made without an executor, the legal heirs can file an application for a Letter of Administration in a Court with competent jurisdiction with the will annexed to appoint an executor for the same. 

WHAT IS THE TIME LIMIT FOR REGISTERING A WILL IN INDIA?

A will is a legal document that contains the wishes of the testator with respect to his property that he desires should take effect after his death, as per section 2(h) of the Indian Succession Act of 1925. As per this act, any person may write a will as long as they are not a minor and are of sound mind at the time of creation of the will. As long as the testator is aware of the consequences of their action, they may create a will. After a will has been executed, it can be registered.

Section 23 of the Indian Registration Act of 1908 specifies that a document must be presented for registration within four months of its execution, with an exception made for wills. Therefore a will can be executed at any time after its execution, or not be registered at all, and they will stay equally valid.

There is also a provision to register a will after the death of the testator, known as posthumous registration. This is contained in section 40(1) of the Indian Registration Act of 1908, which prescribes that the testator, or after his death the executor under the will, may present a will for registration to any Registrar or Sub-registrar. Therefore no time limit exists for the registration of a will in India, and can be registered at any time, even after the death of the testator.

IS IT MANDATORY TO REGISTER WILLS IN INDIA?

A will is a document containing the wishes of the testator pertaining to the inheritance of his property after his death. Thus, the protection and safe custody of this document is necessary to ensure that it has not been damaged or tampered with. Registration of the will offers this security, as a certified copy of the register will be safely stored with the Registrar, thus eliminating any chance of tampering it. A registered will also helps reduce the chances of any disputes in the future.

Although registering a will offers many benefits, it is not mandatory in India to register a will, as per section 18 of the Indian Registration Act of 1908, which places will as one of the documents whose registration is not mandatory. Even if a will is not registered, it is completely valid and accepted, although registration adds an extra layer of security to it. It must be noted that in the case of Rani Purnima Devi & Anr. v. Kumar Khagendra Narayan Dev & Anr. (1961), the Supreme Court held that the registration of a will does not help in removing all suspicion regarding it and a close examination is necessary to validate the same.

WHAT IS THE PROBATE OF A WILL?

A will is a legal document that a person uses to express their desires pertaining to the inheritance and management of their property after their death. Any person can write a will as long as they are not a minor and are of sound mind at the time of creation of the will. These laws are other rules regarding the creation and execution of a will are given in the Indian Succession Act of 1925. In the same act, section 2(f) defines the probate of a will as the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.

It is essentially the process of a Court of competent jurisdiction analysing the will and validating its authenticity, to ensure that it is indeed genuine and expresses the last wishes of the testator. After this process, the Court grants the executor mentioned in the will with the legal authority to implement the directions mentioned in the will. This process also reduces any chance of the will being challenged, as both the legality and authenticity of the will is verified by the Court.

IS THE PROBATE OF A WILL MANDATORY?

As mentioned before, the probate of a will is a process in which a Court of competent jurisdiction analyses a will and determines its authenticity. Once the Court is satisfied that the will in question is genuine, it will grant the executor of the will with the authority to carry out the desires of the testator as mentioned in the will. This process is useful since the Court verifies both the legality and the authenticity of the will, thus reducing any chance for a challenge to the will by a great amount.

The probate of a will is mandatory in the three presidency towns, i.e., in Kolkata, the municipal limits of the metro cities of Chennai and Mumbai, or if the properties mentioned in the will is located therein. In all other places the probate of a will is not mandatory. It must be noted that section 213 of the Indian Succession Act mandates that the executor cannot establish his right as the same unless he was granted probate of the will under which the right is claimed or was granted letters of administration with the will or with the copy of an authenticated copy of the will annexed.

WHAT ARE SOME OF THE RECENT JUDGEMENTS RELATED TO WILL?

Some of the recent judgements regarding will and testamentary succession are as follows:

VIKRANT KAPILA & ANR. V. PANKAJA PANDA & ORS. (2023)

FACTS

1)    The deceased Sheila Kapila was the absolute owner of the suit property. She died in 2003 after the death of her husband P.K Kapila in 1994. She practised the Hindu religion, and died intestate.

2)    She had four children, and Defendants No. 1 and 2 are their children. Defendants No. 4 and 5 are the grandchildren of late Sheila Kapila through the first wife of her son Rajendra Kapila, and defendant 3 is his second wife.

3)    Plaintiff No. 1 to 3 are the grandchildren of late Sheila Kapila through her daughter Sudha Panda, who died in 2019. The plaintiffs claim one fourth of the suit property as co-owners and have hence filed the suit for partition, separate possession, etc.

4)    Dr. Rajendra Kapila divorced his first wife in 2008, and remarried in the year 2009 to Deepti Saxena, Defendant No. 3. Rajendra Kapila died in 2021.

5)    The plaintiffs claim an equal share in the property stating that Sheila Kapila died intestate, and therefore the property must be partitioned between the four children.

6)    Plaintiffs and Defendants No. 1 to 3 all equally deny the existence of the alleged will said to have been written and executed by late Sheila Kapila by the Defendants No. 4 and 5. Plaintiffs and Defendants No. 1 to 3 therefore together claim intestate succession of the suit property.

7)    While the plaintiffs denied the existence of the alleged will, they also raise an alternative plea stating that even if the will is valid, it would provide absolute legacy to the four children of late Sheila Kapila, and therefore Defendants No. 4 and 5 have no claim towards this property, also stating that they kept quiet about the existence of such a will for so long, even during their the lifetime of their father.

8)    The parties agreed that the suit property cannot be partitioned through metes and bounds and must therefore be sold, and the money received be divided between the Plaintiffs, the Defendant No. 1 and 2 and the share of Rajendra Kapila be divided among Defendant No. 3, 4, and 5, as decided by a legal proceeding.

ARGUMENTS

1)    The Plaintiffs and Defendant No. 1 to 3 claim that Sheila Kapila died intestate and hence her property should be divided equally among her four children. They deny the existence of the will said to be existing by Defendant No. 4 and 5. They also argue that the property should be divided according to Hindu intestate succession laws, and should therefore be divided leaving each child a one-fourth share. They argue that since the will has come to light only now after eighteen years of her death, the authenticity of the will is in doubt. They prayed to the Court to direct the sale of the Suit property and distribute the proceeds accordingly.

2)    The Defendants No. 4 and 5 claim that Sheila Kapila left a will which provided specific instructions for the distribution of her property. They claim that the will gave a one-fourth share of the property to each of her children, but restricted them from selling it during their lifetime. Instead, this property is to be inherited by her grandchildren, who may dispose of their share of the property if they like, but must first be offered to her children if they are alive or to her grandchildren, before disposing it of to someone else.

JUDGEMENT

1)    The Supreme Court held that a trial was necessary to resolve the disputes that have arisen in this case. It held that the Trial Court had not conducted a proper trial and had prematurely assumed the existence of the will. Since a full trial was not conducted and the parties to the Suit have not all agreed to the existence of the will, it cannot be assumed that such a will exists. It even proceeded to pronounce a judgement based on the terms of the will. This was considered an error from the part of the Trial Court. 

2)    The Supreme Court held that a detailed trial was necessary since the existence of the will is a central issue in this case. Since the will came into light only after 18 years, its authenticity is under question and must be ascertained only after detailed scrutiny. If a trial was conducted, it would have allowed for the cross-examination of witnesses and the scrutiny of evidence, none of which could be done as a proper trial was not conducted. A trial would have helped determine if Sheila Kapila died intestate or if the alleged will actually exists and is valid.

3)    The Supreme Court therefore set aside the judgement issued by the Trial Court and directed the Court to conduct a detailed trial on this case. It held that a detailed trial that takes into account all the evidence and arguments presented by both parties must be conducted, and the authenticity and validity of the will must be ascertained, along with the claims of intestate succession that were raised by Plaintiffs and Defendant No. 1, 2, and 3. The Trial Court may then distribute the property based on its findings.

The Supreme Court in this judgement pointed towards the importance of a proper trial in cases of inheritance and succession.

SWARNALATHA & ORS. V. KALAVATHY & ORS. (2019)

FACTS

1)    The two defendants were the children, and the appellant the daughter in law, of the couples Adhilakshmiammal and Mannar Reddiar. The mother had left behind a will after her death in 1995, and subsequently the father too left behind his will after his death in the year 2000. One of their sons, V.M. Chandrashekaran, predeceased the father.

2)    The Will left behind by the mother transferred her properties to her two sons, leaving behind her daughter, citing the reason that she had already been provided sufficiently. Similarly, the Will left by the father also transferred his properties to his sons, and thereafter to his grandchildren, without giving any share to his daughter, for the same reason that she had been provided enough earlier.

3)    The death of V.M. Chandrashekaran left behind his wife and two sons, the appellants in this suit. After the death of the father, the other son and daughter of the two parents filed a partition suit in the District Munsiff Court. Upon knowledge of the same, the appellants filed a petition for probate of the wills of the mother and the father. The defendants contested against this petition, but the Court granted probate of both the wills. 

4)    Challenging this judgement of the Probate Court, the defendants filed an appeal in the High Court, which set aside the probate on grounds of suspicion pertaining to the authenticity of the will. The High Court held that several factors such as the inconsistency between the witnesses presented by the appellant and the lack of clarity regarding the ailment suffered by the mother during the time of creation of the will (whether mental or physical), along with the delay in seeking probate by the appellant and some other reasons, all raised suspicion regarding the authenticity of the will.

5)    Aggrieved by this judgement, the appellants filed this appeal.

JUDGEMENT

1)    The Supreme Court held that the judgement issued by the High Court is plagued with errors. The High Court failed to see some of the other reasons behind the appeal filed against it which points toward the ulterior motives of the defendants. It held that all the issues raised by the High Court either collectively or individually were not sufficient grounds for suspicion.

2)    It held that the High Court failed to see that the daughter was in fact “sufficiently provided” as mentioned in the Wills of both the parents. She was married off to a bank employee in 1970. According to the will, she was provided 50 sovereigns of gold at the time of the wedding. She was also given various amounts of money, and was also helped with when her husband was in need of money. The daughter was also given money to buy two plots of land in the outskirts of  Chennai.

3)    The Will of the father also contains statements that the daughter’s daughter was given in marriage to their son, which is the reason they are a party to this case.

4)    Also, suspicions regarding the authenticity of the Will of the mother do not stand since the father’s will, which in contrast to the mother’s will was registered, clearly mentioned about the mother’s will. Also, the father was a witness in the execution of the mother’s will. All these facts suffice in proving the authenticity of the Will.

5)    The Supreme Court also held that the exclusion of one of the natural heirs from the bequest cannot by itself be a ground to hold that there are suspicious circumstances. The reasons behind the same were already given in both the Wills, which was overlooked by the High Court. It also held that these reasons were convincing enough to justify the reason for removal of the daughter from the Wills of both the parents.

6)    The delay in seeking probate in this case is not suspicious since after the death of the mother, the father was still alive to take care of his late son’s wife and children. It was only after the death of the father and the subsequent suit filed by both the children that the need to seek probate arose, and therefore the delay in seeking the same is perfectly justified.

7)    The Supreme Court also held that in the matter of appreciating the genuineness of execution of a will, there is no reason to see whether the testator had distributed his property in a fair and equitable manner to all his children. The Court does not apply Article 14 to dispositions under a Will.

8)    Also, the reason for the daughter and the son coming together as parties in this case can be easily understood by the fact that the daughter’s daughter was married as the daughter in law of the son. Therefore, the son’s family would receive two thirds of the share of the properties, which is more beneficial than getting half share under the wills.

CONCLUSION

A Will is a legal document that expresses the intent of the testator pertaining to the inheritance and succession of his property after his death. The Indian Succession Act of 1925 lists out the rules and laws regarding the same. It states that any person may write, so long as they are of sound mind at the time of creation of the will and are not a minor. Even a deaf, dumb, blind, or generally insane person may create a will as long as they understand the consequences of the action they are about to undertake.

The procedure to be followed during the execution of a will is also given in the Indian Succession Act of 1925 under its section 63. It states that the signature of the testator or any person under his direction shall be affixed on the will, in such a way as to make clear the intention of the testator to give effect to the document as his will. Two or more witnesses must attest for the authenticity of the will, and must affix their signatures in the will, and they must have seen the testator or the person appointed on behalf of him sign the will, or must have received personal acknowledgement from the testator about the same.

An executed will can be registered, although it is not mandatory to do so, and an unregistered will stands equally valid to a registered one. The Supreme Court in the case of Rani Purnima Devi & Anr. v. Kumar Khagendra Narayan Dev & Anr. (1961), held that the registration of a will does not automatically remove all suspicion regarding its authenticity, and a close examination is required to determine the same. Even though registering a will is not mandatory, it does help by adding an extra layer of security over the will. Registering a will means that a certified copy of the same is kept with the Registrar or Sub-registrar in safekeeping, and can only be accessed by the testator during his lifetime, or by the executor.

A person may appoint an executor to carry out all the bequests mentioned in the will by declaring them as their executor. Such an executor must be a trustworthy person and should ideally not be a beneficiary. It is not mandatory to mention an executor in a will, and even without an executor, a will is equally valid. In case a testator is not mentioned in a will, the legal heirs can approach the Court of appropriate jurisdiction and file an application for a Letter of Administration with the will annexed, to appoint an executor who the Court deems fit. It must be noted that the Indian Succession Act mandates that the probate of a will can only be granted to the executor mentioned in that will.

A probate, as defined under the Indian Succession Act, is a copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator. This essentially means that probate is a process wherein the Court analyses the Will and examines its authenticity, and then grants the executor mentioned in the will with the authority to carry out the bequests mentioned in it. It is not mandatory to probate a will except in the presidency town of Kolkata, and the municipal limits of Chennai and Mumbai.

Writing a will is necessary if an individual desires that his legacy be succeeded by a specific person after his death. It reduces the chances of dispute between the legal heirs and avoids any confusion that may arise regarding who may inherit the property of a deceased relative. Not only that, a will is helpful in preventing a particular individual from inheriting your self acquired property, if you may wish so.