Eligibility for Writing a Will & Types of Wills

A scroll of a Last Will & Testament, tied with a black ribbon on a mahogany desk, with a white rose and pen. Good copy space

A will need not be made just before a person’s demise. The person can plan his/her will well in advance. To start with, let’s understand what a will is and what’s its purpose. A will is a written expressed wish of the writer of the will about how he or she wishes to distribute his or her property after their demise. This property, however, is limited only to self-owned assets and excludes ancestral property.

Types of wills

There are different kinds of wills to cater to different needs and situations.

Privileged will
This kind of will is only for a privileged lot of the population comprising personnels from the armed forces from air force, army and navy. This will may be written or oral. If written (completely or partly) by the testator, it need not be signed.

If it is written by someone else and without any signature of the testator, it is valid if it can be proved that it was written as per the testator’s wishes.

In case the will is not executed as per the wishes of the testator, it shall not be invalid if it can be proved that some factor other than abandonment of intentions to execute the will was responsible for the same.

The death of the executor before execution of the will will not make the will invalid.

If it’s an oral will, it requires two witnesses. Such a will can be rendered invalid if the testator is no more qualified to make a privileged will within a month (in case he or she is still alive).

Also, privileged will may be revoked by a letter will, which may even be an unprivileged will. Revoking a privileged will can simply involve physical methods like tearing the sheet, burning, etc.

Unprivileged will
As the name suggests, all those who don’t fall the category of armed forces personnel, i.e. civilians, can make unprivileged will.

An unprivileged will has to be signed or attested in all forms, unlike a privileged will.
The signature or the attestation of the witnesses and the testator of the will should be such that there should be no doubt about the reason of the same.
This basically means that the signature should be made clearly and should be clearly visible to give legitimacy to the will.
You also require two witnesses.
Both the witnesses do not need to be in each other’s presence during the process of signing.

Who is eligible to write a will

According to the Indian Succession Act, 1925, any adult of a sound mind can write a will. However, this act excludes Muslims as their laws are mostly governed under Muslim Personal Law.

A married woman is also eligible to write a will if she can isolate the property solely belonging to her and not by anyone whom she may be dependent i.e. husband or parents.

Being visually or hearing impaired does not incapacitate you from writing a will.

Any person under a state of intoxication (voluntary or involuntary), illness or any similar cause cannot make a will.

Will Registration, is it mandatory?

While it’s advisable to register one’s will, especially if you perceive future disputes, registration of will is not mandatory. The registration, however, gives it legal validity. It may also be noted that if a will is not registered it doesn’t mean it cannot be executed. The unregistered will is perfectly valid. However, if you intend to register the will, here are the steps that need to be followed

The will needs to be registered before the Sub-Registrar or the Registrar of the district court under whose jurisdiction a major part of the property lies.
In all normal or ordinary cases, the registration process has to be in the offices of the Registrar or the Sub-Registrar. But, in special cases, Section 31 of the Registration Act provides an exception.
The section states that the “officer may on special cause being shown attend at the residence” for the registration process of the will.
The cause may be ill health, impending the death and other such situations.
The Registrar has the responsibility to examine the document carefully and make sure no legal errors are made in the same before signing on the registration

Execution of the will

Whether the will is registered or unregistered, probate proceedings have to be initiated in the district court or high court of appropriate jurisdiction.

The court will study the will and make sure that the will has been made by the due process of law.

The court will let the executor deal with the estate and distribute the same as per the provisions in the will.

If the testator has not appointed an executor, the court shall appoint an administrator to do the same.

A lawyer with 14 years' experience, Vikram has worked with several well-known corporate law firms before joining Vakilsearch.