RiteWill — WRITE IT RIGHT, MAKE IT LAST.

LEGAL VALIDITY & COMPLIANCE

The law your will has to satisfy

Succession in India is not governed by one statute. Which rules apply to you depends on religion, on how you married, and on the kind of property involved.

GOVERNING LEGISLATION

The statutes that matter

The Indian Succession Act, 1925

Christians, Parsis, Jews, inter-religion marriages and others

Part VI governs wills. Testamentary succession, codicils, probate and letters of administration all sit here.

Hindu Succession Act, 1956

Hindus, Sikhs, Jains and Buddhists

Intestate succession. Since the 2005 amendment, daughters hold coparcenary rights equal to sons.

Muslim Personal Law (Shariat) Application Act, 1937

Muslims, under Sunni and Shia schools

Wasiyat, which is limited to one-third of the net estate, with its own rules on bequests to heirs.

Special Marriage Act, 1954

Inter-religion marriages

Succession follows the Indian Succession Act rather than either party's personal law.

Registration Act, 1908

Everyone

Registration of a will is optional. Where done, it creates a public record and eases proof of execution.

Guardians and Wards Act, 1890

Anyone appointing a guardian

Appointment of a guardian for a minor, read with the Hindu Minority and Guardianship Act, 1956.

SECTION 63

Three signatures make a will

Under the Indian Succession Act, a will is in writing and signed by you, then attested by two witnesses. This is the step most home-made wills get wrong.

THE TESTATORSigns the will, or acknowledges a signature already made.
FIRST WITNESSSaw you sign, or had your acknowledgement, and signs in your presence.
SECOND WITNESSThe same, independently. The two need not be there at the same time.

VALIDITY

What a valid will requires

The formalities differ by the personal law that governs you. This is where most home-made wills fail.

Hindus, Sikhs, Jains and Buddhists

  • Sound mind, and at least eighteen years of age.
  • The will must be in writing, signed or marked by you.
  • Two witnesses must attest, each in your presence.
  • A gift by the will to a witness, or to a witness's spouse, fails. The will itself still stands.
  • Your undivided share in joint family (coparcenary) property can be left by will, under section 30 of the Hindu Succession Act. Without a will it passes by succession, not simply to the other coparceners.
  • Where the will is made in, or deals with immovable property in, the original jurisdiction of the Bombay, Madras or Calcutta High Court, probate is compulsory.

Muslims

  • A bequest cannot exceed one-third of the net estate, calculated after funeral expenses and debts.
  • Anything beyond one-third requires the consent of all heirs, given after the death.
  • A bequest to a legal heir generally requires the consent of the other heirs.
  • Sunni and Shia schools differ on bequest ratios and on how heirs are classified.
  • Oral wills are recognised under Mohammedan law, unlike under the Succession Act.

Christians, Parsis and others

  • Governed entirely by Part VI of the Indian Succession Act, 1925.
  • The same formalities apply: writing, signature and two attesting witnesses.
  • For Parsis, probate is compulsory where the will is made in, or deals with immovable property in, the original jurisdiction of the Bombay, Madras or Calcutta High Court. Since 2002 Indian Christians, like Muslims, are exempt from that rule.
  • There is no religious restriction on freedom of bequest.
  • Where there is no will, heirs may need letters of administration or a succession certificate, depending on the asset and who holds it.

REGISTRATION AND STAMP DUTY

Optional, and usually worth doing anyway

Registering a will under the Registration Act, 1908 is not compulsory. An unregistered will is perfectly valid. But registration puts the document on a public record, makes execution far easier to prove later, and takes away one of the common lines of attack — that the will was fabricated after the death.

Stamp duty on a will itself is nominal. The cost that catches families out comes later: court fees on probate, assessed on the value of the estate and varying by state, with caps in several of them.

PRIVILEGED WILLS

The narrow exception

Sections 65 and 66 of the Indian Succession Act allow soldiers on an expedition or engaged in actual warfare, airmen so employed, and mariners at sea to make a privileged will.

These may be oral, or written in the testator's own hand without signature or attestation. The exception is narrow, it ends when the qualifying service ends, and it should never be relied on where an ordinary will can be made instead.

Not sure which of these applies to you?

Tell us your circumstances and we will tell you which law governs your succession and what your will has to do to satisfy it.