In India, the competency to make a will is governed by the Indian Succession Act of 1925. According to this Act, any person who is of sound mind and not a minor can make a will. Here are the key points regarding competency:
Age: The individual must be at least 18 years old.
Sound Mind: The testator must be of sound mind at the time of making the will. This means they should be capable of understanding the nature of their actions. A person suffering from mental illness or under the influence of intoxicants at the time of making the will is considered incompetent.
Free Will: The will must be made voluntarily, without any coercion, fraud, or undue influence. The testator should execute the will out of their own free will and intention.
Disqualification: Persons who are deaf, dumb, or blind can still make a will if they understand what they are doing by it. However, persons who are insane or mentally incapacitated are not competent to make a will.
Are Wills Legally Binding in India?
Yes, wills are legally binding documents in India, provided they meet certain legal requirements as laid out in the Indian Succession Act, 1925:
Written Document: The will must be in writing. It can be handwritten or typed, but must be clearly readable.
Signature: The testator must sign or affix their mark on the will. If the testator is unable to sign, another person can sign the will in the testator's presence and by their direction.
Witnesses: The will must be attested by at least two (2) witnesses. Each witness must have seen the testator sign the will or affix their mark, and each witness must also sign the will in the presence of the testator. It is advisable, although not mandatory, that witnesses are not beneficiaries under the will to avoid any potential conflicts of interest.
Registration: Registration of a will is optional but recommended. Registering the will with a sub-registrar provides strong legal evidence that the will was executed properly, though an unregistered will is equally valid if duly executed.
Revocability: A will can be revoked or altered by the testator at any time during their lifetime. The latest will made by the testator prevails over any previous wills.
Probate: Upon the death of the testator, the will may go through the probate process where a court validates the will and grants the executor authority to distribute the estate according to the will’s instructions. Probate is generally not mandatory unless the will is made within the territories of Mumbai, Kolkata or Chennai or deals with immovable property situated in the territories of Mumbai, Kolkata, or Chennai.
These steps ensure that a will, once properly executed and witnessed, becomes a legally binding document, detailing the wishes of the deceased regarding the distribution of their assets.
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