How to Draft a Will in India: Types, Legal Requirements and Registration

Kaustav Chowdhury
Jul 12
6 min read

A well-drafted will is one of the most effective instruments for ensuring that your assets pass to the people you intend, in the manner you choose. Without one, the law decides who inherits your property, and that outcome may bear little resemblance to your wishes. Indian law provides a straightforward framework for creating a valid will, and understanding it can save your family considerable time, expense, and emotional distress.

Who Can Make a Will in India?

Section 59 of the Indian Succession Act, 1925 lays down the basic eligibility. Any person who is at least 18 years old and of sound mind may make a will. "Sound mind" means the testator understands the nature and effect of the document, the extent of the property being disposed of, and the claims of persons who might reasonably expect to benefit. A person who is ordinarily of unsound mind but who makes the will during a lucid interval is legally competent to do so.

Under the Hindu Succession Act, 1956, Section 30 confirms that a Hindu can dispose of property by will. Following the 2005 Amendment, daughters have equal coparcenary rights, which means a testator's ability to bequeath ancestral property is limited to their own share. For self-acquired property, there is no such restriction.

Types of Wills Recognised Under Indian Law

Indian law recognises two broad categories. Unprivileged wills are the standard form used by the general public. A privileged will may be made by a soldier engaged in active warfare, an airman so engaged, or a mariner at sea. Privileged wills carry relaxed formalities: they may be oral, need not be signed, and do not require two attesting witnesses.

Within unprivileged wills, testators may choose several structures. A simple will names beneficiaries and distributes assets outright. A conditional will takes effect only upon a specified event. A joint will is executed by two or more persons (commonly spouses) in the same document. A mutual will involves reciprocal promises between two testators, each bequeathing property to the other. A codicil is a supplementary document that modifies an existing will without replacing it entirely.

Legal Requirements for a Valid Will

Section 63 of the Indian Succession Act, 1925 prescribes three essential elements for an unprivileged will. First, the will must be in writing. There is no requirement that it be typed or printed; a handwritten will is equally valid. Second, the testator must sign or affix a mark to the will, or another person must sign on the testator's behalf in the testator's presence and at the testator's direction. Third, the signature must be attested by two or more witnesses, each of whom must have seen the testator sign or must have received a personal acknowledgement of the signature from the testator. The witnesses must sign the will in the presence of the testator.

A few practical points are worth noting. Witnesses should not be beneficiaries under the will, as that may invite suspicion and challenges. The will should clearly identify the testator by full name, address, and date of birth. Each page should be signed. An executor (the person responsible for administering the estate) should be named in the will.

Step-by-Step Process for Drafting a Will

Step 1: Prepare an inventory of all assets. List immovable property (land, flats, houses), movable property (bank accounts, fixed deposits, shares, mutual funds, vehicles, jewellery), intellectual property, and digital assets. For each asset, note identifying details such as survey numbers, account numbers, or folio numbers.

Step 2: Identify the beneficiaries. Include full names, relationship to the testator, and addresses. Specify what each beneficiary receives. If any beneficiary is a minor, appoint a guardian for the minor's share.

Step 3: Appoint an executor. This should be a trusted individual who is willing and capable of managing the estate. Naming an alternate executor is prudent in case the primary executor is unable to serve.

Step 4: Draft the will with clear, unambiguous language. Begin with a declaration that you are making the will voluntarily, that you are of sound mind, and that you revoke all previous wills. Describe each asset precisely. State the distribution plainly. Include a residuary clause covering any assets not specifically mentioned.

Step 5: Execute the will. Sign or affix your mark on each page and at the end. Have two witnesses (preferably not beneficiaries) attest the will by signing in your presence. The date and place of execution should be recorded. Understanding the distinction between a nominee and a legal heir is important when planning your estate, as nomination alone does not determine who inherits your property.

Registration of a Will

Under Section 18 of the Registration Act, 1908, registration of a will is optional but highly recommended. A registered will carries a presumption of authenticity and is far more difficult to challenge in court. The process involves presenting the original will before the Sub-Registrar of the district where the testator resides, along with two witnesses. The testator must appear personally (or through an authorised representative if physically unable). The Sub-Registrar verifies identity, records the will, and issues a certified copy.

Stamp duty for wills varies by state, but is generally nil or nominal. Registration fees are typically modest. Despite the minimal cost, many people skip registration, which can complicate matters for heirs later.

Probate: The 2025 Change

Until recently, probate (a court order confirming the validity of a will and the authority of the executor) was mandatory in the jurisdictions of Mumbai, Kolkata, and Chennai under Section 213 of the Indian Succession Act, 1925. This created a significant burden for executors in those cities, requiring them to approach the High Court before acting on the will.

The Repealing and Amending Act, 2025, which received Presidential assent on December 20, 2025, omitted Section 213 entirely. Probate is therefore no longer mandatory anywhere in India. Executors may now act on a will without first obtaining a probate order. However, voluntary probate remains available and may still be prudent in complex estates or where disputes are anticipated, as a probate order provides judicial confirmation that the will is genuine. For the related process of claiming a deceased person's bank deposits, the steps for heirs involve separate documentation requirements.

Revocation and Modification of a Will

Section 62 of the Indian Succession Act establishes a fundamental principle: a will is ambulatory, meaning it can be revoked or altered at any time during the testator's lifetime. Section 70 outlines four methods of revocation. A will may be revoked by a subsequent will or codicil. It may be revoked by a written declaration executed with the same formalities as a will. It may be revoked by the testator or by someone acting in the testator's presence and at the testator's direction burning, tearing, or otherwise destroying the will. Section 69 provides that marriage revokes all previous wills unless the will was made in contemplation of that specific marriage. However, this provision does not apply to Hindus, Buddhists, Sikhs, or Jains, for whom marriage does not automatically revoke a prior will.

It is good practice to review your will periodically, particularly after major life events such as marriage, the birth of a child, acquisition of significant assets, or changes in family relationships.

Common Mistakes to Avoid

Several errors recur in will-drafting disputes. Using vague language ("my property in Delhi" when the testator owns multiple Delhi properties) invites litigation. Failing to include a residuary clause leaves unmentioned assets to devolve under intestate succession. Making beneficiaries also serve as attesting witnesses can create complications. Not updating the will after acquiring new assets results in gaps. Drafting the will under duress or undue influence renders it voidable. Finally, storing the will in an inaccessible location defeats its purpose; informing the executor of the will's location is essential.

Special Considerations for Different Communities

The Indian Succession Act applies uniformly to Christians, Parsis, and Jews. For Hindus, Buddhists, Sikhs, and Jains, the Hindu Succession Act, 1956 governs intestate succession, while testamentary succession follows the Indian Succession Act. Muslims are governed by personal law, and the Indian Succession Act does not apply to them in respect of wills; under Muslim law, a testator may bequeath only up to one-third of the estate to non-heirs, and bequests to legal heirs require the consent of other heirs. When structuring property succession, understanding the mutation or dakhil kharij process is also critical for transferring land records to the new owner.

Key Takeaways

Any person aged 18 or above and of sound mind can make a will under Section 59 of the Indian Succession Act, 1925. A valid unprivileged will must be written, signed by the testator, and attested by two witnesses under Section 63. Registration under the Registration Act, 1908 is optional but strongly recommended for evidentiary strength. Following the Repealing and Amending Act, 2025, probate is no longer mandatory in any jurisdiction in India, though voluntary probate remains available. A will can be revoked at any time by a new will, a codicil, a formal written declaration, or physical destruction. For Muslims, testamentary capacity is limited to one-third of the estate for non-heirs. Regular review and updating of your will after significant life events is essential to avoid intestate succession for newly acquired assets.