Avoid vague drafting, interested witnesses, unsigned corrections, and multiple, contradictory documents
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The Supreme Court, in its ruling in Parvathi Nairthi v. Laxmi Nairthy, has clarified that non-registration of a will cannot by itself raise suspicion about its genuineness, as Indian law does not make registration mandatory. The court also observed that the exclusion of natural heirs is not automatically suspicious, since a will is intended to alter the normal line of succession.
“Courts can still examine a will closely if there are genuine suspicious circumstances such as fraud, coercion, doubtful signatures, or lack of mental capacity,” says Shankey Agrawal, partner, BMR Legal.
What makes a will valid
A will is valid if a person of sound mind makes it voluntarily and understands its contents. The person making the will must sign it, and at least two witnesses must attest it after seeing the signing or receiving confirmation from the person. Registration is not compulsory.
An unregistered will can still be legally valid if it is properly signed and witnessed.
Why witnesses matter
Witnesses matter because the person making the will is usually no longer alive when it is challenged. They help prove that the will was signed freely and properly.
“Ideally, witnesses should be independent, reliable, traceable, and not major beneficiaries under the will. In family disputes, credible witnesses can play a key role in whether a will is accepted or rejected,” says Agrawal.
Can registration still help?
Registration of a will is not compulsory, but it can still help by creating an official record and reducing disputes about its existence or execution.
“Even a registered will can be challenged on grounds such as fraud, coercion, lack of mental capacity, or improper witnessing. A clear will, proper witnesses, and medical proof of soundness of mind can help strengthen its validity,” says Agrawal.
Registration is especially advisable in cases involving high-value assets, blended families, exclusion of close heirs, multiple properties, advanced age or illness of the testator, or where family disputes are likely.
“While registration does not by itself prove validity, courts may treat it as an additional factor supporting genuineness, particularly where execution and identity are independently proved in accordance with Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872,” says Gaurav Singh Gaur, associate partner, King Stubb & Kasiva, Advocates and Attorneys.
What makes a will vulnerable
Common mistakes that make wills vulnerable to challenge include vague drafting, improper witnessing, use of interested witnesses, unclear identification of assets, and execution during illness without medical proof of mental capacity.
“Missing originals, overwriting, unsigned changes, delayed disclosure, or contradictions with earlier documents can also create serious legal disputes,” says Gaur.
Reduce risk when excluding heirs
If a person excludes natural heirs, the will should clearly state that it was made voluntarily and in a sound state of mind. It may help to briefly explain the reasons for exclusion and use independent, reliable witnesses. In cases involving old age, illness, or likely disputes, medical proof of mental fitness can strengthen the will.
“Regularly updating the will after major life or financial events such as marriage, divorce, death in the family, business restructuring, acquisition or sale of substantial assets, or significant changes in family relationships can also help reduce future legal challenges,” says Gaur.
When to review a will
A will should be reviewed after every major personal or financial change, including marriage, divorce, death in the family, the birth of heirs, significant business developments, relocation, or the purchase or sale of property.
“In property-heavy estates, periodic review becomes even more important following fresh acquisitions, redevelopment arrangements, partition, or restructuring of assets, as outdated descriptions or ownership details frequently become sources of future disputes,” says Darshana Velani, principal associate, IndiaLaw LLP.
The asset schedule should also be updated whenever there is a change in property holdings, ownership structure, asset description, or mode of holding. “It is best treated as a living annexure to the will. If the schedule is outdated or inaccurate, implementation can become difficult and disputes may arise, even where the will itself is otherwise valid and enforceable,” says Velani.
Tips on revoking an older will
• Avoid verbal declarations, handwritten notes, or destroying copies as methods of revocation
• Informal revocation can create ambiguity and lead to prolonged litigation
• Leaving behind multiple wills also creates conflicts
• Execute a fresh will that clearly revokes all earlier wills and codicils
The writer is a Delhi-based independent journalist.
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