How to Make a Will in India: Dos and Don'ts

One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.

Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.

TL;DR: You do not need permission from anyone to make a will, and you do not need to register it. What you do need is a written document, signed by you, attested by two witnesses who are not beneficiaries, with an executor named and a clause covering assets you acquire later. Get it drafted properly once, and it will save your family years of litigation.

Key Facts of the Case

• Client: divorced, both parents living, one brother. No intention of marrying again.
• Assets held: a flat in Indore, fixed deposits, a recurring deposit, a PPF account, provident fund, listed shares and monthly SIP folios.
• First attempt at a will: a downloaded template filled in by herself, with no executor named, no residuary clause and no attesting witnesses.
• Live issue: her provident fund nomination and her mutual fund nominations named different people from the ones she wanted to benefit.
• Will executed on 11 April 2025, signed before two independent witnesses.
• A medical certificate recording soundness of mind was obtained the same week.
• Will registered voluntarily, though registration is not compulsory.
• Succession governed by the Indian Succession Act, 1925, Sections 59 and 63, read with Section 30 of the Hindu Succession Act, 1956.

The Direct Legal Answer

Yes, you can make a will, and nothing stops you from choosing exactly who inherits what. A will is not a form to be filled. It is a document that gets read by a court only after you are gone, when you cannot explain what you meant.

How do I make a will that survives a challenge?

Write it, sign it at the foot of the document, and have two witnesses sign in your presence, each of them having seen you sign. That is the core of Section 63 of the Indian Succession Act, 1925. Everything else is good practice.

Is registration compulsory?

No. Registration under the Registration Act, 1908 is optional for wills. It helps because a registered will is harder to lose, deny or tamper with.

Can I leave out my parents or my brother?

Yes. You have no obligation to make anyone a beneficiary, and you do not need a reason. But an unexplained exclusion is one of the things a court later examines closely, so say something, even briefly.

My PF nominee and my will name different people. Which wins?

The nomination decides who collects the money. The will decides who finally owns it. Courts have generally treated a nominee as a custodian holding funds for the legal heirs, not as the absolute owner.

Advice in Such Cases

Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Map every asset before you draft a single line. Property, deposits, provident fund, shares, SIPs, jewellery, and anything held jointly. Then decide the shares in numbers, not in vague phrases like "equally" or "as she thinks fit".

Get a medical certificate on or around the date of signing. Twenty years later, when the will is read out, someone will claim you were not of sound mind. A dated certificate kills that argument early.

Succession drafting has its own procedural and evidentiary habits, and general practitioners often miss them. A will that fails on attestation or on an ambiguous residue clause is a will that sends your family to court.

Applicable Sections of Law

• Indian Succession Act, 1925, Section 59: every person of sound mind, not a minor, may dispose of property by will.
• Indian Succession Act, 1925, Section 63: the signing and attestation requirements for an unprivileged will, that is, the ordinary will most people make.
• Indian Succession Act, 1925, Section 61: a will caused by fraud, coercion or importunity that takes away free agency is void.
• Indian Succession Act, 1925, Section 62: a will may be revoked or altered at any time during the testator's life.
• Hindu Succession Act, 1956, Section 30: a Hindu may dispose of property by will.
• Registration Act, 1908, Section 18: registration of a will is optional.

Jurisdiction — Where to File the Case

Making a will involves no court at all. Filing starts only after death.

A probate or succession certificate petition goes to the District Judge under Section 264 of the Indian Succession Act, 1925, and the High Court holds concurrent jurisdiction under Section 300. A dispute over the will, such as a suit for declaration or partition, goes to the civil court of the lowest competent grade, as Section 15 of the Code of Civil Procedure, 1908 directs, and a suit about immovable property is filed where the property sits, under Section 16.

Get this right. Filing in the wrong forum costs months before anyone even argues the merits.

Limitation Period

There is no limitation on making, altering or revoking a will. You can tear one up the day before you die and sign another.

Limitation bites after death. A suit for declaration or partition is governed by Article 113 of the Limitation Act, 1963, which gives three years from the date the right to sue accrues. An application for probate, where no period is separately prescribed, is generally brought under Article 137 of the Act. Courts have taken different views on how strictly Article 137 applies to probate petitions, so this is one point to check with your advocate rather than assume. Miss the clock and you may need an application for condonation of delay, which is never guaranteed.

Interim Reliefs Available

Interim relief matters most when a beneficiary fears the property will be sold before the case ends.

• Order 39 Rules 1 and 2, CPC: a temporary injunction restraining alienation or transfer.
• Order 38 Rule 5, CPC: attachment before judgment where the defendant is disposing of assets to defeat a decree.
• Order 40, CPC: appointment of a receiver to hold and manage disputed property.
• Status quo orders preserving possession and title.

An injunction obtained in month one is worth far more than a decree obtained in year five. And here's the thing: an executor who has already distributed the money is very hard to reverse.

If You Are the Victim

• Get a certified copy of the will and the probate petition from the court file the moment you learn of them.
• Note down the date of death and the date you first came to know the will existed. That second date matters more than people realise.
• Do not sign a no-objection, a family settlement or a "full and final" receipt because a relative asked you to, in a room, on a Sunday.
• Put every request to a bank, a registrar or a depository in writing, and keep the acknowledgement.
• Check for encumbrances on the flat — a sale deed, a mortgage, a gift deed executed after the will was signed.
• Preserve what shows your own position: dependency, contribution, prior promises in writing.
• Do not move into or take exclusive possession of disputed property. It colours everything that follows.

Documents and Evidence You Will Need

• The original will, if you hold it, or a certified copy from the court file or the registrar's office.
• The death certificate.
• Proof of your relationship with the deceased — family records, ration card, school certificates, or the succession certificate if one already exists.
• Title deeds, share and folio statements, bank and post office records, the provident fund passbook and the nomination form.
• Medical records from around the date the will was signed. A prescription, a discharge summary, an opinion — anything dated.
• Drafts, emails and notes showing who prepared the will and who typed it. This is the first thing an opposing counsel asks for.
• Names, addresses and phone numbers of the attesting witnesses. If a witness has died or cannot be traced, the law has a fallback, but you need to know which situation you are in.

Step-by-Step: How the Process Actually Runs

1. Collate the papers. Nothing is filed before this. Half the delay in these matters is a missing nomination form.
2. Decide whether probate is needed. Probate is mandatory in certain cases and for certain classes of wills, and optional in others. It also depends on which state you are in and where the property is. Ask specifically about your state before you file.
3. File the petition. A probate petition is filed under Section 276 of the Indian Succession Act, 1925. Where there is no will, or the will does not cover everything, a succession certificate is applied for under Section 372 of the same Act.
4. Citation and notice. The court issues notice to the next of kin and publishes a citation so anyone with an objection can come forward. This is the stage where a quiet family disagreement becomes a formal caveat.
5. Evidence. Under Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, earlier Section 68 of the Indian Evidence Act, 1872, at least one attesting witness has to be called to prove a will in court. This is why your witnesses matter.
6. Grant or contest. If nobody objects, the grant usually follows. If a caveat is filed, it converts into a contentious suit and the timeline changes completely.

Common Mistakes That Break a Will

• A beneficiary as a witness. A person who takes a benefit under the will is a poor choice of attesting witness, and the Act itself treats a legatee as an incompetent witness to prove the will.
• Signing only at the top, or only on the last page of a multi-page document. Sign at the foot, and have the witnesses sign after you, in your presence and in each other's presence.
• No residuary clause. If the will lists specific items and stops there, anything you bought afterwards — a new flat, a new folio — is left to the general law of succession. That is usually the opposite of what you wanted.
• Vague shares. "Equally" is workable. "As my sister thinks fit" is not.
• One witness signing on a different day, in a different city. Perfectly common, and perfectly fatal to the attestation requirement.
• A beneficiary drafted the will. Not illegal by itself, but it invites a challenge you then have to defend.

Frequently Asked Questions

How do I make a will in India if I have no children and do not want to leave anything to my brother?

You name the people or institutions you do want to benefit, you sign at the foot in front of two witnesses who are not beneficiaries, and both witnesses attest it. You do not owe anyone an explanation. What helps is one plain sentence in the document recording that you have considered your natural heirs and chosen otherwise. An unexplained exclusion is not fatal, but it is the first thread a challenger pulls.

Can I write my own will on plain paper and skip the lawyer?

Legally, yes. There is no requirement of stamp paper, no required format and no compulsory registration. Practically, the wills that land in court are the ones written at home. The usual defects are attestation, ambiguity, and no executor. Drafting is not expensive. Litigation over a badly drafted will is.

My nomination is in one name and my will is in another. What happens?

The nomination governs who the bank, the depository or the fund hands the money to. The will governs who ultimately owns it. Courts have generally treated a nominee as holding the funds for the legal heirs rather than as the absolute owner, though the position has been argued both ways and can turn on the wording of the specific nomination. If this gap exists in your papers right now, close it — update the nominations to match the will, or the other way round.

Can my parents or brother challenge the will after I am gone?

Anyone with an interest can file a caveat and contest the grant. The grounds are narrow: want of sound mind, want of proper attestation, fraud or coercion, or an earlier will. They cannot succeed merely by showing they were left out, unless they were actually dependent on you and the law applicable to you provides for maintenance. The best defence is a will that was drafted cleanly, signed cleanly and supported by a medical certificate dated close to the signing.

How long does probate take, and what does it cost?

An unopposed probate in a busy district court can still take a year or more. A contested one runs for years. Court fee is charged ad valorem on the value of the property in most states, which is where the real expense lies, along with the advocate's fee. Anyone who tells you a fixed number without seeing the asset schedule is guessing.

I signed a will years ago. Can I change it?

Yes, at any time, and as many times as you like. Under Section 62 of the Indian Succession Act, 1925 a will is revocable during your lifetime. The safest method is a fresh will that expressly revokes all earlier ones, rather than crossing things out on the old one. A person holding an old copy is not a problem; a person holding an old copy that still looks valid is.

What to Send Us

If you are drafting, bring a list of every asset with the approximate value and the name you want on each one. If you are already in a dispute, send the will, the death certificate and a two-line note of what has happened so far — who has the original, who has taken possession of what, and whether any bank or registrar has already acted. A photograph of the document is fine to start with.

You can write to us through the contact page or fix a time at book a consultation. Bring the papers you have. If, on the facts, there is nothing worth arguing, we will tell you that in the first meeting rather than the fifth.

This article is general information about Indian law and is not legal advice on your own situation. Wills, probate and nomination rules turn on individual facts and vary by state.

Advocate Sudhir Rao, Supreme Court of India