Aditya Marwah
in Family Law
Asked April 04, 2015

Requirements of a Will

  • 1 Answer
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What are the requirements of executing a will in India? Is it necessary for a will to be registered, and under what circumstances can it be revoked?

Answer 1

Will as defined under Sec 2(h) of the Indian Succession Act, 1925 means “a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” Every person of sound mind and who is not a minor can dispose his property by executing a will.[1] Even if a will is made by a person of sound mind or a person whose is a major but the making of such a will has been caused by fraud or coercion i.e. the person had not made the will out of his free will then that shall not be valid in the eyes of law.[2] There are two kinds of wills; Privileged and Unprivileged will and there are different requirements for both of them. A privileged Will is one which is made by any soldier, airman, navy persons, mariner who are willing to dispose of their estate during their course of employment. An unprivileged Will is one which is created by every testator not being a soldier, airman, mariner so employed.[3] A privileged will can be in writing or can be orally made. If the will is written by the testator only then it need not be signed and attested but if it has been partly written by the testator and partly by someone else and has also been signed by him then it need not be attested. If the will has been made orally then it will expire in one month.[4] In case of an unprivileged will, the testator shall sign the will and also two witnesses are supposed to sign that will in the presence of the testator. There is no particular form of attestation required by the Act.[5] As for the registration of the will, according to the section 18 of the Registration Act, 1908 the registration of a will is not compulsory. The non registration of a will does not lead to an inference against the genuineness of the will nor does it give any special sanctity to the will. However, once a will is registered, the benefit is that it is strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after. The process of registration begins when a will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator himself or his authorised agent. Once the scrutiny of will instrument is done by the registrar and registrar is satisfied with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator.[6] An unprivileged will can be revoked either by the marriage of the testator or by another will made by him, or by a codicil [7] or by declaring an intention to revoke the same and not in any other manner and an privileged will can be revoked by the testator by making an unprivileged will or by expressing his intention of revoking it.[8] [1]Sec 59, The Indian Succession Act, 1925 [2]Sec 61, The Indian Succession Act, 1925 [3]“Will under Indian law”, available at www.legalindia.com (last visited on 6 May, 2015) [4]Sec 66, The Indian Succession Act, 1925 [5]Sec 63, The Indian Succession Act, 1925 [6]Supra note 3 [7]Sec 2 (b)- Codicil means an instrument made in relation to a will, and explaining, altering or adding to its dispositions , and shall deemed to form part of the will [8]Sec 70 & 72, The Indian Succession Act, 1925
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