WHAT IS WILL?

Succession of assets of a person after his death takes place either by Intestate Succession or by Testamentary succession.

Intestate Succession: When a person dies without making a valid Will, succession (distribution of the property of the deceased among legal heirs) takes place according to Laws of Succession as applicable.

Testamentary Succession: Distribution of property of a person after his death when he left a valid Will takes place according to the instruction of his Will and is called Testamentary Succession.

A ‘’Will” is defined under Section 2(h) of Indian Succession Act, 1925 which provides as follows:

“Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

’Codicil” is an instrument made to explain, alter, or add to the provisions of an already executed Will and is defined under Section 2(b) of Indian Succession Act, 1925 which reads as follows:

“codicil” means an instrument made in relation to a Will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the Will.”

Part VI of the Indian Succession Act, 1925 (the Act (Part VI), deals with testamentary succession. The provisions of this Part as detailed in Schedule III of the Act, in terms of Section 57, applicable on the following Wills and Codicils:

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits, and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January 1927, to which those provisions are not applied by clauses (a) and (b).

SCHEDULE III
[See section 57]
PROVISIONS OF PART VI APPLICABLE TO CERTAIN WILLS AND CODICILS DESCRIBED IN SECTION57
Sections 59, 61, 62, 63, 64, 68, 70, 71, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 95, 96, 98, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 1 [117], 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189 and 190.

Restrictions and modifications in application of foregoing sections

1. Nothing therein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos, or to deprive any persons of any right of maintenance of which, but for the application of these sections, he could not deprive them, by will.

2. Nothing therein contained shall authorise any Hindu, Buddhist, Sikh or Jaina, to create in property any interest which he could not have created before the first day of September, 1870.

3. Nothing therein contained shall affect any law of adoption or intestate succession,

4. In applying section 70, the words “than by marriage or” shall be omitted.

5. In applying any of the following sections, namely, sections seventy-five, seventy-six, one hundred and five, one hundred and nine, one hundred and eleven, one hundred and twelve, one hundred and thirteen, one hundred and fourteen, one hundred and fifteen, and one hundred and sixteen to such wills and codicils, the words “son”, “sons”, “child”, and “children” shall be deemed to include an adopted child; and the word “grand-children” shall be deemed to include the children, whether adopted or natural born, of a child whether adopted or natural-born; and the expression “daughter-in-law” shall be deemed to include the wife of an adopted son

PART VI NOT APPLICABLE ON MUHAMMADAN

It is specifically provided in Section 58 that the Part VI shall not apply to testamentary succession to the property of any Muhammadan.

This Section pertains to General Application of Part VI and reads as follows:

“General application of Part. —(1) The provisions of this Part shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any will made before the first day of January, 1866.

(2) Save as provided in sub-section (1) or by any other law for the time being in force the provisions of this Part shall constitute the law of India applicable to all cases of testamentary succession.

WHO CAN MAKE A WILL?

As per Section 59 of Indian Succession Act every person of sound mind not being a minor may dispose of his property by will.

Explanation to Section 59

1. A married woman may dispose by will of any property which she could alienate by her own act during her life.
2. Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
3. A person who is ordinarily insane may make a will during interval in which he is of sound mind.
4. No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

EXECUTION OF UNPRIVILEGED WILLS (Section 63)

Every testator, shall execute his will according to the following rules: —

Signature or mark: The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

Intention to give effect to the will: The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

Attestation by at least Two Witnesses: The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence an d by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Wording of wills (Section 74)

It is not necessary, that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom.

Incorporation of papers by reference will form part of will (Section 64)

If a testator, in a will or codicil duly attested, refers to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the will or codicil in which it is referred to.

Effect of attestation by a beneficiary of a will (Section 67)

A will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them.
Proof of execution of will by Interested Witness or Witness is an Executor (Section 68)
Witness not disqualified by interest or by being executor. —No person, by reason of interest in, or of his being an executor of, a will, shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.

REVOCATION OF WILL AND CODICIL (Section 69 and & 70)
The Will or codicil will revoke in the following cases:
1. A will shall be revoked by the marriage of the maker.
2. Unprivileged will or codicil can be revoked.
(i) by executing another will or codicil, or
(ii) by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is herein before required to be executed,
(iii) or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.

Void Will

Will obtained by fraud, coercion or importunity. (Section 61)
A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
Will or bequest void for uncertainty. (Section 89)
A will or bequest not expressive of any definite intention is void for uncertainty.
Illustration
“If a testator says “I bequeath goods to A,” or “I bequeath to A,” or “I leave to A all the goods mentioned in the Schedule” and no Schedule is found, or “I bequeath ‘money, ’wheat,’ ‘oil,’ ” or the like, without saying how much, this is void. “
Bequest to person by particular description, who is not in existence at testator’s death. (Section 112)
Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers the description, the bequest is void.
Exception.—If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or, if he is dead, to his representatives.
Illustration
(i) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B has no son. The bequest is void.
(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son is born to C. Upon B’s death the legacy goes to C’s son.
Bequest to person not in existence at testator’s death subject to prior bequest. (Section 113)
Where a bequest is made to a person not in existence at the time of the testator’s death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.

Illustration
(i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the time of the testator’s death, A has no son. Here the bequest to A’s eldest son is a bequest to a person not in existence at the testator’s death. It is not a bequest of the whole interest that remains to the testator. The bequest to A’s eldest son for his life is void.
(ii) A fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A has daughters some of whom were not in existence at the testator’s death. The bequest to A’s daughters comprises the whole interest that remains to the testator in the thing bequeathed. The bequest to A’s daughters is valid.
Bequest to a class some of whom may come under rules in sections 113 and 114. (Section 115)
If a bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the provisions of section 113 or section 114, such bequest shall be 1 [void in regard to those persons only, and not in regard to the whole class].

Bequest to take effect on failure of prior bequest.( Section 116)
Where by reason of any of the rules contained in sections 113 and 114, any bequest in favour of a person or of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same will and intended to take effect after or upon failure of such prior bequest is also void.

Bequest upon impossible condition (Section 126)
A bequest upon an impossible condition is void.
Illustration
An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.
Bequest upon illegal or immoral condition (Section 127)
A bequest upon a condition, the fulfilment of which would be contrary to law or to morality is void.
A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void.

Bequest to religious or charitable uses. (118)
No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons: 2
Provided that nothing in this section shall apply to a Parsi.

Testamentary guardian (Section 60)
A father, whatever his age may be, may by will appoint a guardian or guardians for his child during minority.
Revocation or Alteration of Will (Section 62)
Will may be revoked or altered. -A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.
 
PROBATE:

1. What is Probate?

“probate” means 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 (Section 2 (f) Indian Succession Act, 1925)

• Probate is a legal process where a court verifies the authenticity of a Will and grants the executor the authority to distribute assets.
• It is issued by the competent civil court (District Court or High Court) under the Indian Succession Act, 1925.

2. When is Probate Required?
• Before 20.12.2025, Probate was mandatory for Will executed in the territories of:
• Mumbai, Chennai, or Kolkata (for Hindus, Sikhs, Jains, and Buddhists).
• Now (w.e.f. 20.12.2025) obtaining the Probate is not mandatory in the Territory of India.
However, to avoid the challenge of a Will in court, obtaining probate is advisable.

3. Who Can Apply for Probate?
• The executor named in the Will.
• If no executor is named, the legal heirs can apply for probate.

Provisions under Indian Secession Act, 1925

Section 222. Probate only to appointed executor.—(1) Probate shall be granted only to an executor appointed by the will.
(2) The appointment may be expressed or by necessary implication

Section 223. Persons to whom probate cannot be granted.—Probate cannot be granted to any person who is a minor or is of unsound mind nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made ,by notification in the Official Gazette by the State Government in this behalf.

Section 224. Grant of probate to several executors simultaneously or at different times.—When several executors are appointed, probate may be granted to them all simultaneously or at different times

Section 225. Separate probate of codicil discovered after grant of probate.—(1) If a codicil is discovered after the grant of probate, a separate probate of that codicil may be granted to the executor, if it in no way repeals the appointment of executors made by the will.

4. Steps to Obtain Probate

Step 1: File a Probate Petition
• The executor must file a petition in the competent court where the deceased person resided or owned property.
• Documents required:
• Original Will
• Death certificate of the testator
• List of legal heirs
• Court fees (varies by state)

Step 2: Court Issues Notice
• The court issues a public notice to legal heirs and interested parties to raise objections (if any).

Step 3: Verification and Witness Statements
• The court may ask witnesses of the Will to confirm its authenticity.

Step 4: Grant of Probate
• If no objections are raised, the court grants probate, authorizing the executor to distribute assets.
• If the Will is contested, the court conducts a trial before deciding.
 
DEPOSIT OF WILL WITH THE REGISTRAR

In India, a person can deposit their Will with the Registrar for safekeeping under Section 42 of the Indian Registration Act, 1908. This is optional, but it provides legal security and helps prevent tampering or loss of the Will.

Key Points about Depositing a Will:

1. Who Can Deposit the Will?

• The testator (person making the Will) personally.
• Or, a duly authorized agent on behalf of the testator.

2. Where Can It Be Deposited?

• At the office of the Registrar/Sub-Registrar appointed under the Indian Registration Act.

3. How Is It Deposited?

• The Will must be in a sealed cover with:
• The name of the testator
• A statement of contents (i.e., “Will of [name]”)
• The Registrar receives it, makes an entry in the register, and issues a receipt to the depositor.

4. Security and Confidentiality

• The Will remains sealed and confidential with the Registrar.
• It can only be opened:
• After the testator’s death
• Upon an application by an interested person (usually an executor or heir)
• With court orders if necessary

5. Withdrawal of the Will

• The testator can withdraw the Will at any time during their lifetime.
• A withdrawal application must be made personally or by an authorized agent.

6. Opening of Will After Death

• After the testator’s death, any beneficiary or executor can apply to have the Will opened and registered.
• Once opened, the Registrar copies the contents into the official record and returns the original (usually to the executor or legal heir).

7.Registration vs. Deposit
Registration Deposit
Public record Registered Will becomes a public document (once admitted to probate) Deposited Will remains confidential until death

Fees Registration fees apply Nominal deposit fees apply
Modification A new Will must be registered separately Deposited Will can be replaced or withdrawn

Benefits of Depositing a Will:

• Safe custody – protects against loss, theft, or tampering
• Legal authenticity
• Ease of access after death (by rightful heirs or executors)
• Reduces chances of disputes and forgeries