12 August 2021

A guide to Indian wills

Woodcock Law and Notary Public is experienced in the creation and notarisation of Indian wills. If dealing with assets in India, you will need to have it acknowledged by the Indian High Commission. We will carefully tailor our approach to meet your requirements with the utmost empathy and care. Let us assist you with expert advice so that your will is valid and up to date with the current legislation.

Estimated reading time: 3 minutes

By Vibha Angre, Legal Intern

A will in India is like any other. It is a legal instrument or declaration made by a person about the management and distribution of the person’s property after their death.

There is no prescribed format for a will. However, a written will is the more preferable format, as refuting it would be difficult. The Indian Succession Act 1925, states that anyone who is not a minor and of sound mind can make a valid will. The person making the will is called the ‘testator’.

To have your will acknowledged by the Indian High Commission, you will need to start off this process by completing a Miscellaneous Application form, as well as having a minimum of two witnesses. You will also need the original, and one extra copy of the Power of Attorney.

If you are an Indian national, you will need:

Notarised photocopy of a valid visa
Self-attested photocopy of your passport

If you are not an Indian national, you will need:

Photocopy of passport apostilled/attested by the Foreign and Commonwealth Development Office (FCDO) of the UK.

What are the essential elements of Indian wills?

While there is no prescribed format for a will, there are certain essential elements that would make a will difficult to contest. The essential elements are as follows:

Declaration: The will must begin by declaring that you are of sound mind and must also declare who the executor of your will is. If you have any previous wills, then a declaration must also be made to revoke all previous wills and codicils.
List of Assets: Your will must list out all the assets that you own. Assets include real estate, money, fixed deposits, and mutual funds.
Division of Assets: You must mention very clearly who will receive which item on your list of assets. Any asset left to a minor must be done so by appointing a custodian of that asset.
Signing and Witnessing: You are required to sign your will in the presence of two witnesses. The witnesses must also sign the document, certifying that they were present when the will was signed. It is at this point that the will must be dated and the full names and addresses of the witnesses must be specified.
Initial Every Page: The final page must also contain the date and place of your signing the document. Additionally, every page must be signed by you and your witnesses. If you have made any correction to the will, it must be countersigned by you and your witnesses.
Storing your Will: You must always store copies of your will separate from the original. All of them must be kept in a safe place.

Is my will likely to be challenged?

There have been instances where a will has been challenged and the most common ground for challenge has been the question of whether the testator was of sound mind at the time of writing the will.

How many times can Indian wills be changed or updated?

You may change and update your will as many times during your lifetime as you wish. A will may also be revoked. Codicils are legal instruments that are used in relation to a will. It is made to explain, alter or add to the will and is considered as part of the will.

What is probate?

Probate is the judicial process whereby the will is proved in court and is accepted as the last true testament of the deceased.

Who should be my witnesses and the executor of my will?

Witnesses must always be trusted persons who do not have a vested interest in the will. This means that when you ask someone to witness your will, you must ensure that they are not beneficiaries in the will.

Your executor can be your spouse or adult child. However, many choose to appoint a lawyer as the executor.

Do Indian wills need to be registered and notarised for them to be valid?

According to sections 17 and 18(e) of the Registration Act 1908, a will is not a compulsorily registrable document. It is the choice of the testator to register it or not.

Therefore, a will does not need to be registered or notarised to be valid. However, registering and notarising the will places it in the safe custody of the registrar and protects it from harm.

What happens to my assets if I die without a will?

If you die without making a will, then you are considered to have died intestate. In such a situation, your assets will be distributed in accordance with your personal law. The Indian Succession Act provides for different laws of inheritance for different communities.