Wills & Succession
A common belief about Wills in India is that an unregistered Will is weak and a registered Will is strong. That is not what the law says. Registration of a Will is optional, and registering one does not by itself make it valid. What makes a Will work is careful drafting, proper execution and clear-headed attestation.
We draft Wills against the actual title position, attend to attestation and, where the testator chooses it, registration — including arrangements where the testator is unwell or unable to travel. We also handle codicils, private family trusts, and the documentation families need after a death.
When you need this service
- You are making a Will, or you made one years ago and circumstances have changed
- You want to add a property, change an executor, or alter a share
- The testator is unwell or unable to attend the Sub-Registrar's office
- You are considering a family trust that operates during your lifetime rather than after it
- A family member has died without a Will and the heirs need to establish entitlement
- A property has to be mutated into the names of the legal heirs
What we handle
Will drafting
Consultation on the asset inventory and the succession intent, and a drafted multi-asset Will with the executor appointment settled. A Will is a declaration of how a person intends their property to devolve after their death. It takes effect only on death, and until then it can be revoked or replaced at any time. A Will is not a transfer — nothing moves while the testator is alive.
Execution and attestation
Section 63 of the Indian Succession Act, 1925 sets out how an unprivileged Will must be executed. The testator signs, or affixes a mark, or has someone sign in their presence and by their direction; and the Will is attested by two or more witnesses, each of whom has seen the testator sign or affix the mark, and each of whom signs in the presence of the testator. Two or more attesting witnesses is the statutory requirement — it is not four.
Optional registration
Under the Registration Act, 1908 a Will is one of the documents whose registration is optional rather than compulsory. Where a testator chooses to register, the Will is presented at the Sub-Registrar's office, and where the testator is unwell or unable to travel, arrangements can be made so that the testator need not attend the office in the ordinary way.
Codicils and fresh Wills
Where the change is small — a new asset, a changed executor, an altered share — a codicil can amend an existing Will rather than replacing it, and must be executed with the same formality as the Will itself. Where changes are substantial, a fresh Will with a clear revocation clause is usually cleaner than a chain of codicils that have to be read together.
Private family trust
A private family trust is created under the Indian Trusts Act, 1882. Unlike a Will, which takes effect only on death, a properly structured trust can operate during the settlor's lifetime. We advise on the structure, draft the trust deed, attend to registration, and advise on transferring immovable property into the trust including the stamp duty implications.
Succession certificate assistance
A succession certificate under the Indian Succession Act, 1925 may be required for specified debts and securities, depending on the asset and on the institution or debtor concerned. Not every movable asset requires one, and where probate or letters of administration are the relevant route the position differs again. We establish which documentation the particular asset and institution actually call for, prepare and organise it, and coordinate with counsel where a court application is the route.
Legal heir and heirship documentation
Legal heir or heirship documentation may be required by a particular authority or institution, depending on the asset and the purpose — mutation in the revenue records, a departmental transaction, or an institution's own requirement. What is accepted, and by whom it is issued, varies. We confirm the requirement for your specific purpose before an application is made, then prepare and submit it with the supporting documentation.
What we ordinarily ask for
When preparing a Will for registration we generally work from:
- Proof of identity — PAN card, Aadhaar card or Election card
- Passport-size photographs
- Proof of residence
- A medical certificate as to the testator's condition
- Identity documents of the attesting witnesses
Please note: This is what we ask for in practice, not a statutory checklist. The legal requirement under Section 63 of the Indian Succession Act, 1925 is attestation by two or more witnesses. A medical certificate is not a statutory requirement for validity — but where capacity might later be questioned, because of advanced age or recent illness, contemporaneous medical evidence is a sensible precaution. Identification requirements are a matter of current office practice and differ between offices. Trust deed requirements vary with the structure and the assets involved.
What is commonly misunderstood
Registration does not prove validity
What registration does is create an official dated record — a record of the document and of the fact that it was presented, at a particular time, before a public officer. That can be a relevant circumstance if the Will is later disputed. What it does not do is establish that the Will is valid. If challenged, the person propounding the Will must still prove due execution and attestation under Section 63, and must still meet a challenge based on lack of testamentary capacity, undue influence, fraud or suspicious circumstances.
An unregistered Will is not invalid
Registration is optional. An unregistered Will is not, for that reason, invalid. Registration is a useful evidentiary step that many testators reasonably choose, and it is not a substitute for careful drafting and proper execution.
Self-acquired property only is too blunt a rule
A Will may dispose of property, or an interest in property, that is legally capable of testamentary disposition, and what that includes depends on the nature of the title, the ownership position and the personal law that applies. In the case of Hindus, Section 30 of the Hindu Succession Act, 1956 recognises testamentary disposition of a Hindu's interest in Mitakshara coparcenary property. Where ancestral or coparcenary rights are in play, or the property is held jointly, the position is examined against the actual title before drafting.
Choose witnesses who take nothing
A prudent practice worth distinguishing from a legal requirement: we advise against using a beneficiary, or a beneficiary's spouse, as an attesting witness. The Act deals with this by affecting what such a person can take under the Will rather than by invalidating the attestation, but the sensible course is simply to choose witnesses who take nothing.
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