By Legum Pacific Editorial ·
A common situation
Suppose an elderly shopkeeper writes a note saying how his flat and savings should be shared after he dies. He signs it in front of two friends. After his death, relatives say the note is not a proper will and claim the money.
What does the law say?
The Indian Succession Act, 1925 sets out who may make a will, how a will is to be executed, when a will is invalid or revoked, and how courts deal with estate administration after death (Part VI and Part IX of the Act) (see sections 59, 63, 61, 62, 217–227). The Act also explains special rules for privileged wills made by soldiers, mariners or airmen (sections 65–66).
Who can make a will and what form must it take?
- Any person of sound mind who is not a minor may make a will (section 59). The Act explains that deaf, dumb or blind persons are not thereby incapacitated from making a will if they understand what they do (Explanation 2 to section 59). A person temporarily insane may make a will during a lucid interval (Explanation 3). (section 59)
- An unprivileged will (ordinary will) must be signed by the testator or by someone in his presence and by his direction. The testator’s signature or mark must show the instrument is intended as his will. Two or more witnesses must attest the will; each witness must have seen the testator sign or has received a personal acknowledgement of the signature, and each witness must sign in the presence of the testator. It is not necessary that more than one witness be present at the same time (section 63).
- A will may incorporate other written papers referred to in it (section 64).
- Privileged wills made by soldiers, mariners or airmen may be less formal. They can be wholly in the testator’s handwriting without attestation, or made orally before two witnesses, or written by another and recognised by the testator in certain circumstances. A will made by word of mouth becomes null one month after the privileged status has ceased, if the testator is still alive (sections 65–66).
When is a will invalid or revoked?
- A will (or part of it) caused by fraud, coercion or by importunity that destroys the testator’s free agency is void (section 61).
- A will is revocable or alterable by the testator while he remains competent to make a will (section 62).
- Every will is revoked by the marriage of the maker, except in certain limited cases noted in the Act (section 69).
- An unprivileged will can be revoked by another will or by a writing of revocation executed with the same formalities, or by destroying the will with intent to revoke (section 70). Privileged wills can be revoked by similar acts or by a later unprivileged will (section 72).
- A gift in a will to a witness does not make the will invalid, but the gift to the attesting witness (or spouse of that witness) is void to the extent stated in the Act (section 67).
What happens after the testator dies — probate and letters of administration?
- Part IX governs grants of probate and letters of administration and administration of assets (section 217). Probate is the Court’s grant that confirms a will and the executor’s authority. Probate is granted only to an executor named by the will (section 222).
- Probate, when granted, establishes the will from the death of the testator and validates intermediate acts of the executor (section 227).
- Letters of administration give the administrator the intestate’s rights as if administration had been granted immediately after death (section 220). They do not, however, validate intermediate acts of an administrator that diminish the estate (section 221).
- For proof to recover debts from debtors of the deceased, courts require representative title: a probate, letters of administration, or a succession certificate as evidence of the representative’s authority (section 214).
What if there is no will (intestacy)?
- If a person dies intestate and was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or an exempted person, administration of the estate may be granted to any person who, according to the rules for distribution of the estate applicable to that deceased, would be entitled to the whole or part of the estate. The Court has discretion where several such persons apply (section 218(1)–(2)).
- Where the deceased does not fall into those classes, the Act sets an order of preference for who may obtain letters of administration, starting with the widow, and then other relatives, with a creditor allowed if no connected person is willing to act (section 219).
What does this mean for ordinary people?
- A valid will normally needs the testator’s signature (or mark) and at least two witnesses who sign (section 63). Privileged wills follow different rules for soldiers, mariners and airmen (sections 65–66).
- After death, the person named as executor can seek probate. Without a will, letters of administration are needed and are granted to those entitled under the distribution rules or, failing that, to other relatives or a creditor (sections 220, 222, 218–219).
- Courts will normally not allow recovery from a debtor of a deceased person unless the claimant shows a probate, letters of administration, or an appropriate certificate (section 214).
Key points
- Anyone of sound mind and not a minor may make a will (section 59).
- An ordinary will generally needs the testator’s signature and two or more witnesses (section 63).
- Wills obtained by fraud, coercion or importunity are void (section 61); marriage normally revokes a will (section 69).
- Probate is granted only to an executor named by the will and validates the will from the testator’s death (sections 222, 227).
- Letters of administration give administrators the intestate’s rights as if granted at death (section 220).
- Courts require probate, letters of administration or a succession certificate before a debtor of the deceased can be compelled to pay (section 214).
Laws referred to
- The Indian Succession Act, 1925: sections 59, 60, 61, 62, 63, 64, 65, 66, 67, 69, 70, 72, 214, 217, 218, 219, 220, 222, 227
Official sources
This guide explains what the law itself says. Court rulings interpreting these provisions can also affect how they apply in a particular case. It states the position under the official texts listed above, as at 17 October 2026.