Wills & Testamentary Succession in India

What makes a will valid -- testamentary capacity and execution under Sections 59 and 63

Section 59 of the Indian Succession Act, 1925 permits every person of sound mind, who is not a minor, to dispose of property by will -- this extends to married women, and to a person who is deaf, dumb, or blind provided they are aware of what they are doing, and to a person of intermittent unsoundness of mind provided the will is made during a lucid interval. Section 63 sets out the execution requirements for an ordinary (unprivileged) will: the testator's signature or mark (or a signature made by someone else in the testator's presence and by the testator's direction), intended to give effect to the will, and attestation by two or more witnesses, each of whom has either seen the testator sign or has received a personal acknowledgment of the signature from the testator, and each of whom then signs in the testator's presence. Registration under the Registration Act, 1908 is optional and not required for validity, though it is widely recommended as it strengthens evidentiary weight and reduces the risk of loss or tampering.

A January 2025 Supreme Court clarification on attestation, and how revocation works

In a ruling this platform understands was decided 2 January 2025 (Gopi Krishan and others v. Daulat Ram and others -- this platform could not independently verify the precise citation and recommends confirming it before relying on the case name in a legal filing), the Supreme Court clarified that Section 63's attestation requirement is satisfied so long as each witness has seen the testator sign (or received an acknowledgment) and then signs in the testator's presence -- witnesses do not need to see each other sign. A will is revoked by a later will or codicil, by a written declaration of intention to revoke executed with the same formality as a will, or by burning, tearing, or otherwise destroying it with the intention to revoke. A notable exception worth flagging: unlike the general common-law-derived position for other communities, marriage does not automatically revoke the will of a Hindu, Buddhist, Sikh, or Jain testator under Section 57 of the Act -- this platform recommends confirming the current position for a specific testator's community with a lawyer given how easily this nuance is missed.

NRI-specific planning -- one worldwide will, or a separate India-specific will

Practitioner guidance for NRIs generally favors executing a separate, India-specific will limited to Indian assets, rather than relying on a single worldwide will. India levies no inheritance or estate tax, so there is no tax-driven reason to consolidate; a separate India-specific will also avoids delays where a foreign will or foreign probate grant would otherwise need to be recognized or re-sealed by an Indian court, and it simplifies dealing with Indian banks, registrars, and courts. This platform flags the most common risk in this approach clearly: a later will executed abroad containing a broad clause revoking all prior wills can accidentally revoke the India-specific will (and vice versa), unless each will is carefully drafted to revoke only wills relating to assets in that specific jurisdiction -- this is standard cross-border estate-planning practice, not a codified statutory rule, and should be handled with a lawyer experienced in both relevant jurisdictions.

Common mistakes people make with wills in India:

• Assuming a will must be registered to be valid -- registration is optional under Section 63, though advisable for evidentiary strength.
• Executing a later foreign will with a broad revocation clause without realizing it can accidentally revoke an existing India-specific will.
• Assuming marriage automatically revokes a will for every community -- this platform flags that this does not apply to Hindus, Buddhists, Sikhs, or Jains under Section 57.