Will

Introduction
A “will” is the quintessential testamentary instrument by which a person (the testator) disposes of his or her property to take effect after death. In India, wills remain the primary tool for private distribution of assets, appointment of executors, and expression of post‑death wishes (including guardianship directions for minor beneficiaries). For practitioners, mastery of the law of wills is indispensable: disputes over testamentary capacity, undue influence, doubtful execution, revocation and multiple wills are perennial sources of contested litigation and settlement negotiations.

Core Legal Framework
Primary statute
– Indian Succession Act, 1925 (ISA) — the principal statute that governs testamentary succession for persons to whom the ISA applies. Part II of the ISA deals with wills and codicils; Part V deals with probate and letters of administration.
– Key statutory touchstones you must have at your fingertips:
– Section 59, ISA — capacity to make a will: the Act provides that every person of sound mind and not being a minor may dispose of his property by will.
– Section 63, ISA — formal execution requirements: the Act requires that a will be in writing, signed by the testator (or by another in his presence and by his direction), and attested by at least two witnesses present at the same time.
– Provisions on codicils, revocation, revival and construction of wills are contained in the contiguous provisions in Part II (consult the ISA text for precise numbering of these related provisions).
– Probate and letters of administration (grants to executors/administrators) are dealt with in Part V (commencing around Section 276 onward).
Ancillary law and principles
– Registration Act, 1908: registration of a will is optional. A will need not be registered to be valid; registration, if done, only gives the will additional evidentiary value.
– Evidence Act, 1872: is central when adducing attestation evidence, proving handwriting, or dealing with oral proof where the original is missing.
– Criminal law and evidentiary rules may be engaged when fraud, forgery or coercion is alleged.
Important definitions and concepts (statutory and doctrinal)
– Will (testamentary disposition) — a unilateral, revocable written declaration taking effect after the testator’s death.
– Codicil — written supplement or amendment to a will (must comply with the same execution formalities).
– Probate — judicial certificate recognizing validity of a will and the executor’s right to administer estate (available under ISA for those who choose the probate route).

Practical Application and Nuances
Execution and attestation — how disputes arise and how to avert them
– Essentials for a sound will: (a) testamentary capacity, (b) voluntariness (absence of undue influence/fraud), (c) compliance with execution formalities (writing, signature, two attesting witnesses), and (d) clear identification of property and beneficiaries.
– Common execution defects:
– Missing or defective attestation (attesting witnesses not present together; witnesses later recanting).
– Signature executed by proxy without clear contemporaneous direction and proof.
– Ambiguous signature location (e.g., signature on last page but no inter‑page authentication).
Practical steps for practitioners:
– Ensure the will is in writing, signed by the testator on each page or contains clear inter‑page identification, and attested by at least two witnesses who sign in the testator’s presence and in presence of each other.
– Obtain brief affidavits from witnesses at execution (or contemporaneous video/audio record where permissible) describing presence and mental capacity.
– Attach a self‑proving affidavit (or notarisation where locally used) to reduce the probability of later attestation disputes.
Testamentary capacity — what you must prove or displace
– Capacity is assessed at the time of execution. The testator must understand the nature of the act, know the nature and extent of his property, and comprehend the natural objects of his bounty and the distribution he is effecting.
– Evidence used:
– Medical records and physician affidavits (showing the testator was of sound mind).
– Conduct and contemporaneous statements (letters, conversations).
– Testimony of attesting witnesses and close acquaintances.
– Strategic practice tip: where capacity may be challenged, create contemporaneous evidence of lucidity — a short medical fitness certificate and witness affidavits immediately following execution are invaluable.
Undue influence, fraud and coercion — proof and counter‑measures
– Undue influence is common in family disputes. It is rarely proved by direct evidence; courts infer undue influence from circumstances (dependency, isolation of testator, suspicious timing or content of the will, beneficiaries being in confidential relationship with testator).
– Evidence and tactics:
– Challenge: show suspicious circumstances — sudden change from previous wills, exclusion of natural heirs without plausible reason, secrecy in execution.
– Defence: document testator’s reasons for disposal (letters, recorded conversations), keep independent witnesses (preferably not beneficiaries), and show frankness in consulting legal advisers.
Multiple Wills and Revocation
– Multiple wills (older will and later will) raise construction issues: the later will usually revokes earlier ones to the extent of inconsistency.
– Revocation can be express (by cancellation or new will) or implied (later inconsistent will). Practitioners must advise clients to expressly revoke prior wills in the new instrument and to destroy outdated originals.
– Preserve originals: A common litigation trigger is the missing original will; ensure safe custody (bank locker, solicitor’s custody) and keep certified true copies with a dated log of where originals are stored.
Probate, letters of administration and practice in courts
– Probate is not mandatory; executors may administer without probate in many jurisdictions — but probate affords stronger title to third parties (especially for immovable property and banks).
– When to seek probate: where the estate has substantial immovables, when third parties insist on judicial proof, or where title disputes are likely.
– Practicalities:
– Attach the original will, list of assets and liabilities, computation of estate, and notices to potential heirs in the probate petition.
– Anticipate and try to settle objections through pre‑litigation negotiation or mediation to avoid prolonged probate litigation.
International and conflict‑of‑laws issues
– Separate rules may apply where the deceased had property abroad or domicile questions arise. Hong Kong/UK/US precedents often inform Indian courts, but local property law (immovable vs movable) and domicile determine applicable law.
– For movable property situated in India, Indian law typically governs; immovable property is governed by the law of the place where it is situated.

Evidentiary Matrix — what the court wants to see
– Original will or credible explanation for its loss.
– Attesting witnesses’ testimony or their affidavit; if witnesses are dead or unavailable, secondary evidence (e.g., certified copy, contemporaneous correspondence) and handwriting proof become crucial.
– Medical records/physician testimony for capacity; contemporaneous diaries or video for voluntariness.
– Evidence of revocation (cancelled portions, destroyed copy).
– Forgeries: forensic handwriting opinion, expert evidence on inks and paper, and chain‑of‑custody proof.

Concrete Examples (practical scenarios)
– Scenario 1 — Suspicious Will executed shortly before death: Typical plaintiff strategy is to file a suit for declaration that will is void for want of capacity or under undue influence; produce evidence of prior testamentary pattern, medical records showing dementia, and show beneficiaries had opportunity and motive. Defendant strategy: produce independent witnesses, contemporaneous documents, and medical certificates indicating competency.
– Scenario 2 — Multiple wills found: Advise filing a probate petition with a clear recital of dates and express revocation clause in the later will. If earlier will favored natural heirs and later will disinherits them, expect challenge — depositions and handwriting proof will be central.
– Scenario 3 — Will missing but copy exists: Bring secondary evidence under the Evidence Act; provide convincing explanation for loss and independent corroboration (attestation affidavits, consistent conduct after will date).

Landmark Judgments
– Banks v. Goodfellow (1870) LR 5 QB 549 (English): While not an Indian judgment, this case remains the classic statement on testamentary capacity and is frequently applied by Indian courts: a testator must understand the nature of his act, know the extent of his property, comprehend claims of those who may expect to benefit and not be subject to any disorder of the mind that influences the disposition.
– Judicial application in India: Indian courts routinely adopt the Banks v. Goodfellow principles when deciding capacity questions and have developed a twofold focus — capacity at the time of execution and presence/absence of suspicious circumstances pointing to undue influence. (Practitioners should rely on recent jurisdictional decisions of the relevant High Court and the Supreme Court for procedural and evidentiary nuances in contested will litigation; cite and study the latest reported authorities in your bench’s jurisdiction.)

Strategic Considerations for Practitioners
Drafting and advisory practice
– Draft for litigation avoidance:
– Full identification clause (name, age, address, Aadhaar/PAN if relevant).
– Clear declaration revoking all prior wills.
– Specific residuary clause (who gets the residue).
– Appointment of primary and alternate executors and guardians.
– Clause addressing debts, taxes and funeral expenses.
– Clause as to dispute resolution (arbitration/mediation) for testamentary disputes — though courts may treat such clauses narrowly in family disputes.
– Execution tripwires to avoid:
– Avoid beneficiary witnesses where possible; if beneficiaries must witness, ensure a non‑beneficiary independent witness is also present.
– Avoid complicated conditional gifts that invite interpretation disputes.
– Avoid ambiguous residuary clauses and inconsistencies across clauses.
Client counselling and estate planning
– Emphasise the difference between nomination (for bank/insurance) and testamentary disposition — nomination sometimes confers only administrative rights and not absolute beneficial title.
– Encourage keeping the original will in safe custody with instructions to the executor; provide for self‑proving affidavits where feasible.
– Consider trusts for complex assets or for tax/administration ease; trusts can reduce probate friction though they have their own legal requirements.
Litigation tactics
– If you represent a challenger:
– Early seek preservation orders (injunctions) to prevent alienation of assets.
– Obtain medical/forensic evidence early while witnesses are fresh.
– Use discovery (where available) to obtain drafts, legal advice communications and custody documents.
– If you represent proponents of the will:
– Produce original, attestation affidavits, and contemporaneous documents quickly.
– Consider applying for probate early to obtain judicial recognition and to keep estate administration moving.
Common practitioner pitfalls
– Failing to have independent attesting witnesses or failing to get witness affidavits contemporaneously.
– Overlooking revocation pitfalls — an earlier unjustified destroyed will might be alleged to have been revoked.
– Poor custody of original will — allowing beneficiary to hold the only original invites allegations of tampering.
– Ignoring informal evidence: even when formal defects exist, courts may admit secondary evidence if the will is otherwise cogent and probable — do not abandon a case early without reviewing all secondary proofs.

Conclusion
A will is a powerful yet fragile instrument: it sets post‑death distribution but invites dense litigation if executed or documented carelessly. For practitioners, the essentials are familiar and practical: ensure compliance with ISA execution formalities (writing, signature, attestation), create contemporaneous proof of capacity and voluntariness, advise clients to revoke outdated wills expressly, and plan estate administration to minimize probate friction. In litigation, build a coherent evidentiary narrative — original will, attesting witness evidence, medical records, and contemporaneous documents are the backbone of both attack and defence. Robust drafting, safe custody and thoughtful pre‑litigation evidence collection are the most effective tools to transform testamentary intent into enforceable post‑death reality.