Concept and Laws Governing Will in India

Concept and Laws Governing Will in India

  • 20-Mar-2023


The idea of will and the laws governing it in India will be covered in this article. We all want to know that our lives mattered and that someone would look after our assets after we passed away. Through a will, a person specifies how and to whom his property shall be distributed after his passing. Let's discuss the idea of a will and the regulations that our government has established about the proper transfer of property through wills.

 Concept of will making in India 

A will is a legal declaration that outlines a person's intentions for how they want their property to be handled after they pass away. According to Section 2(h) of the Indian Succession Act of 1925, a "Will" is a legal declaration of a person's intentions with regard to his property that he desires to take effect after his death. This individual names an executor to administer the will following his death. This indicates that the executor has the authority to modify the will by taking care of the testator's obligations, assets, and other matters. An administrator is chosen by the court to run the estate of the deceased, as opposed to an executor who is chosen by the testator.

A will can be created at any moment, and it can be amended as often as the maker would want. It may also be disposed of at any moment during a person's lifetime if they

The testator’s capacity

Anyone who is at least 18 years old has the legal capacity to create a will. Any adult who is not a minor and who is of sound mind (not insane) may make a will in accordance with Section 59 of the Indian Succession Act. Wills are typically written by elderly persons who are sick and aware of their impending death.

Conditions for creating a Will:

Hindu law prohibits minors, or those under the age of 18, from creating a will.

Only assets that a Hindu married woman has the legal authority to alienate while she is still living may be distributed by will.

People who are deaf, blind, or dumb cannot create a will unless they are conscious of their activities.

Only when the insane individual experiences periods of lucidity is his will accepted as legitimate.

Additionally, a drunken person's will is regarded as invalid.

Indian Laws Governing Will

India is a secular nation with a varied population that includes Hindus, Muslims, Sikhs, Buddhists, and Christians, among others. Separate personal laws for each religion were developed by the nation's constitution writers after keeping the needs of the country in mind. This made sure that all religions might practise freely within the bounds of the law.

Hindu law

The creation of Hindu wills is governed by the Hindu Succession Act of 1956. This Act is applicable to "any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana, or Arya Samaj"[1], as well as to everyone who is not a Muslim, Christian, Parsi, or Jew and was born a Hindu, Jain, or Buddhist. Thus, a will is not required to be on stamp paper or to be registered in accordance with Section 18 of the Registration Act. Means that a contract declaring a specific will to be the last will and testament or prohibiting its revocation is unenforceable.

Muslim Law 

Making a will is not subject to any formal written requirements under Islamic law. Unlike Hindu Law, no written forms or declarations are required until the testator's desire is clearly expressed. In Mohammedan law, a will is referred to as a "Wasiyat," which is defined as "an instrument by which a person makes disposition of his property to take effect after his death."Muslims create wills to provide support to family members who did not receive the right inheritance portion. Because of this, Muslim law allows a man to donate all of his possessions during his lifetime but bans him, with the exception of one-third of his assets, from interfering with how those possessions pass down in accordance with inheritance laws. The law of the school of Islamic law to which the testator belonged at the time of the execution governs the Will. Only Shia will law is made applicable, for example, if the testator was a Shia Muslim at the time he made the will.

Christian law

The recipient of the decedent's estate is determined by his religion. For instance, the 1956 Hindu Succession Act regulates Hindu succession. As a result, Christians are generally subject to The Indian Succession Act of 1925's succession provisions. An "Indian Christian" is defined as a native of India who professes any type of Christianity and who is or claims to be of unmixed Asiatic heritage in accordance with Section 2(d) of the Act.

Each child receives a just share of the inheritance, or in the case of a predeceased child, the children of that child; the widow or widower receives one-third of the estate; and the balance is split among the decedent's lineal descendants. The widow or widower inherits half of the inheritance in the absence of the latter, with the other assets being distributed among family members (other relatives of the deceased). The mother receives the property equally in the absence of the father or if the latter has passed away, then the brother, sister, and their offspring.


The pandemic has made us all more conscious of the value of human life. In India, the rising death toll alarmed the populace, and wills were drawn up to assure a better standard of life for future generations. It should be emphasised that in India, different religions have their own unique rules controlling wills when laws are applied to their community, consideration for their rights and desires must be given.