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What are the requirements for a will to be valid in India?

October 19, 2021

This article answers the question of ‘What are the requirements for a will to be valid in India?‘ and ‘How can I prove a Will in Indian court?

An Introduction of Will

A Will, also known as a Testament is a document written by an individual who could be classified as a Testator. This document would describe the asset lists of the Testator’s possession and how those asset lists could be distributed to others as per the Testator’s wish. The Will document is used for legal purposes. Before we answer the questions, ‘What are the requirements for a will to be valid in India?’ and ‘How can I prove a Will in Indian court?’ Let’s look into the various types of Will.

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Various types of Will

There are various types of Will as per the legal system.

In this article, let us brainstorm about the eligibility criteria of writing a WILL in India.

What are the requirements for a will to be valid in India?

In India, the following are few criteria to writing a Will: 

  • Anyone above the age of 21 years can write a Will;
  • Any adult with a sound mind and no sign of any illness are eligible to write a Will, which includes married women too. (Except for the Islamic community, of course, as Muslims are being governed by their Law); 
  • The Will could be written on plain paper and it is not mandatory to write on stamp paper;
  • Though advisable, the Will could be written handwritten, as it could be one of the proofs that the Testator has written in his handwriting, it is not mandatory to be handwritten. It could be computer printed and endorsed with the signature of Testator and Witnesses;
  • It is highly recommended to register the Will as per the Succession Act, Section 63. The registration provides the Will legal validity; 
  • However, an unregistered Will can also be executed and it is valid incomplete. If one intends to register the Will, it needs to be done in the Sub-Registrar’s Office; 
  • People with visual or hearing impairment could also write a Will to distribute their assets according to their wishes and choices. The Will of the testator must be written by people with sound and clear mind means any person under a state of intoxication, illness or any similar cause cannot make a Will;
  • Either the Will is registered or the probate proceedings have the authority if the Will has been made with due process of the law. Hence, it is highly recommended to write the Will with legal counseling done. 

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How can I prove a Will in Indian court? 

There are instances when the Wills may not have followed a certain process – hence, the authenticity of it will be brought into question. This is a practice that the court tends to bring up. 

Let us discuss further: 

1. Statutory Provisions 

The party propounding a will or making a claim under a will is exploring to establish a report and, in determining how it is to be proved, they must unavoidably refer to the legal provisions which administer the proof of documents. Sections 68 of the Evidence Act and Section 63(c) of the Indian Evidence Act are relevant for this purpose.

Given that it shall not be essential to call upon an attesting witness in proof of the execution of any record which has been registered in accordance with the provisions of the Indian Registration Act, 1908. 

Apart from these statutory provisions, a certain test has to be completed for determining the fulfillment of a will in accordance with the Will. These are :

  1. Did the testator sign the will?
  2. Did they comprehend the essence and impact of the orders in the will?
  3. Did they sign the will knowing what it contained?

It is the determination of these questions which decides the essence of the concluding on the question of the proof of wills. 

2. The burden of Proof

There may be circumstances in which the execution of the will may be circled by suspicious circumstances. In such events, the court would expect that all legitimate doubts be completely eliminated before the record is accepted. 

Suspicious circumstances

The burden lies on the propounder to establish the due execution of the will and remove any and all suspicious events surrounding the execution of the will. 

These suspicious circumstances are:

  1. The signature of the testator may be improper or show signs of nervousness while signing. 
  2. The condition of the testator was fragile and weakened at the relevant time.
  3. The disposition may be fabricated, doubtful, or illegal in the light of relevant circumstances.
  4. The dispositions may not be the testator’s free will and mind.
  5. The propounder takes a noticeable part in the execution of the Will.
  6. The testator signed blank papers.
  7. The Will was not brought to light for a long time. 
  8. Inaccurate presentations of fundamental and primary facts.

3. Other infirmities

In some cases, the wills propounded disclose another frailty. 

If it is shown that the propounder has taken a notable part in the performance of the will and has received an abundant benefit under it – it is treated as a suspicious circumstance. The propounder is required to remove the suspicion by clear evidence.

In such incidents, the test of the satisfaction of judicial conscience becomes crucial. It is apparent that for determining material questions of fact that arise in applications for probate or inactions on wills, no hard and fast or firm practices can be set for the evidence to come into existence.

If you need to know more about the requirements for a Will to be valid in India or have more questions related to Wills in general, contact eSahayak by clicking the consult now button and our legal experts will be happy to clarify your doubts.

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