Eligibility and Types of Wills in India: What You Need to Know

In India, the Indian Succession Act, 1925, governs the creation and execution of wills. Here are the detailed criteria for who can make a will:

1. Age: Any individual who has reached the age of 18 years can make a will. For individuals serving in the armed forces, the minimum age is 21 years.
2. Mental Capacity:
   • The individual must possess testamentary capacity, which means they should understand the nature of making a will and its effects. They should be able to comprehend the extent of their assets and the claims of those who might expect to benefit from the will.
   • Individuals who are of unsound mind or incapable of understanding the consequences of their actions due to mental illness or intoxication cannot make a valid will. The law requires that the person making the will should be in a sound mental state at the time of its execution.
3. Free Will: The will must be made voluntarily and without coercion, undue influence, or fraud. The testator should have complete freedom in deciding the contents of the will.

Types of Wills in India

1. Privileged Will:
   • Who Can Make It: Soldiers, airmen, or mariners engaged in actual warfare or operational duties.
   • Form: Can be oral or written. If written, it does not need to follow the formalities required for other wills, such as being signed by the testator or witnessed.
   • Validity: Such wills are valid only under specific circumstances and have limited duration and conditions.
2. Unprivileged Will:
   • Who Can Make It: Any individual who does not qualify for a privileged will.
   • Form: Must be in writing.
   • Formalities: It must be signed by the testator or someone else in the testator’s presence and under their direction. Additionally, it must be attested by at least two witnesses who are present at the same time.
3. Holographic Will:
   • Who Can Make It: Any individual.
   • Form: Entirely handwritten by the testator.
   • Formalities: Must be signed by the testator. Witnesses are generally not required, but having them can strengthen the validity of the will.
4. Conditional or Contingent Will:
   • Who Can Make It: Any individual.
   • Form: In writing, meeting the same formal requirements as an unprivileged will.
   • Nature: The will only takes effect if a specific condition is met or a specified event occurs. If the condition is not met, the will is not executed.
5. Joint Will:
   • Who Can Make It: Two or more individuals, typically spouses.
   • Form: A single document executed by all the testators.
   • Nature: Disposes of property jointly owned by the testators. It takes effect after the death of the last surviving testator.
6. Mutual Will:
   • Who Can Make It: Two or more individuals.
   • Form: Each individual makes a separate will, but they contain reciprocal provisions.
   • Nature: An agreement exists between the testators that the survivor will not change the disposition of the property after the first testator’s death.
7. Concurrent Will:
   • Who Can Make It: Any individual with assets in multiple jurisdictions.
   • Form: Separate wills for different jurisdictions, each dealing with assets in a specific location.
   • Nature: Ensures that local laws are complied with in each jurisdiction.
8. Duplicate Will:
   • Who Can Make It: Any individual.
   • Form: An exact copy of the original will.
   • Formalities: Both copies must be executed in the same manner as the original will. One copy is kept by the testator, and the other is deposited with a trusted person or institution.
9. International Will:
   • Who Can Make It: Any individual with assets in multiple countries.
   • Form: Must comply with the formal requirements of the UNIDROIT Convention.
   • Nature: Designed to be recognized internationally, simplifying the administration of the estate across different jurisdictions.

Execution and Validity of Wills

For a will to be valid, it must meet the following criteria:

• In Writing: Except for privileged wills, all wills must be in writing.
• Signature: The testator must sign the will, or it can be signed by another person in the testator’s presence and under their direction.
• Attestation: The will must be attested by at least two witnesses who saw the testator sign the will or heard the testator acknowledge the signature. The witnesses must also sign the will in the presence of the testator.

Revocation of a Will

A will can be revoked or altered by the testator at any time before their death. Methods of revocation include:

• Express Revocation: By making a new will or a codicil (an amendment to the will) that explicitly revokes the previous will.
• Implied Revocation: Through actions that are inconsistent with the terms of the existing will, such as selling the property mentioned in the will.
• Destruction: Physically destroying the will with the intent to revoke it.

Understanding these details about who can make a will and the various types of wills helps ensure that individuals can effectively plan the distribution of their assets according to their wishes.