Making a will: two witnesses, no registration

What a will is, and why it is simpler than people think

A will is your written statement of who should get your property after you die. The Indian Succession Act, 1925 defines it as "the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death" (Section 2). The person making the will is the testator. The people who receive something under it are the beneficiaries. The person you name to carry out the will is the executor.

Many people put off making a will because they think it needs a lawyer's office, stamp paper and a trip to the registrar. The law asks for much less. It asks for three things:

1. You are an adult of sound mind when you make it.
2. You sign it, at the end, in a way that shows you mean it as your will.
3. Two witnesses see you sign and then sign it themselves.

No special words are needed. Section 74 says a will does not need technical terms — only wording from which your intentions can be known. Plain language is better than legal-sounding language, because plain language is harder to misread.

Who these rules apply to. The rules in this guide come from the Indian Succession Act. Section 57 applies its rules on making wills to wills made by Hindus, Buddhists, Sikhs and Jains, and Section 30 of the Hindu Succession Act says a Hindu may leave property by will in accordance with the Indian Succession Act. The Act's rules on wills do not apply to wills made by Muslims (Section 58); Muslim personal law has its own rules, and you should speak to an advocate.

What to do, step by step

Step 1 — Check you can make one. Section 59 says every person of sound mind who is not a minor may make a will. Being deaf, mute or blind does not stop you, if you understand what you are doing. What does stop you is being in a state — from illness, medicine, alcohol or anything else — in which you do not know what you are doing. If you are unwell, make the will on a good day, and consider asking your doctor to note that day that you were clear in mind.

Step 2 — List what you own. Write down your property and where each item is held: a house or flat, land, bank accounts and fixed deposits, shares and mutual funds, insurance, gold and jewellery, a vehicle, money others owe you. You do not need account numbers for everything, but enough detail that your family can find each item.

Step 3 — Decide who gets what. For each item, name the person who should get it, with their relationship to you. Then decide what happens if that person dies before you: does their share go to their children, to someone else, or back into the rest of your estate? Add a line for "everything else" — the residue, meaning whatever is not specifically given — so nothing is left out.

Step 4 — Name an executor. Choose someone you trust, who is likely to outlive you and can deal with banks and paperwork. It can be a family member, even one who also benefits. Ask them first.

Step 5 — Name a guardian, if you have young children. If you have children under 18, say who you want to look after them.

Step 6 — Write it, and cancel earlier wills. Start the will by saying it cancels any earlier will. Section 70 recognises "another will" as a way of revoking (cancelling) an earlier one. Date it.

Step 7 — Sign in front of two witnesses. This is the step that makes the will valid, and the one most often done wrongly. Section 63 sets the rules:

• You sign or put your mark on the will — or, if you cannot, someone signs for you in your presence and on your direction.
• Your signature goes where it shows you mean the document to be your will — sign at the end, below the last clause. Initialling every page as well stops pages being swapped.
• Two or more witnesses each see you sign (or hear you acknowledge your signature), and each signs in your presence. Both witnesses need not be present at the same time, but signing together in one sitting is the clearest.

Choose witnesses who are adults, who understand what they are signing and whom your family can find later. Do not choose a beneficiary, or a beneficiary's husband or wife. Section 67 says the will is not badly attested because of it, but the gift to that witness, or to their spouse, is void.

Step 8 — Keep it safe and tell someone. Keep the original in a safe place and tell your executor where it is. You may also register it (next section) or deposit it in a sealed cover with the Registrar under Section 42 of the Registration Act.

Registration: optional, not required

Section 18 of the Registration Act lists wills among the documents that may be registered. Registration is not what makes a will valid — your signature and the two witnesses do. Some people still choose to register for the official record it creates. You, or after your death your executor, may present the will to any Registrar or Sub-Registrar (Section 40 of the Registration Act); the office's fee and procedure are set by your state.

Why the witnesses matter after you die

If anyone ever questions the will, it has to be proved. Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 says a document that the law requires to be attested — and a will is one — cannot be used as evidence until at least one attesting witness is called to prove it, if one is alive and able to give evidence. Registration does not remove this rule for a will. That is why it pays to choose witnesses who are younger than you, reachable, and not caught up in family disputes, and to write their full names and addresses under their signatures.

Timeline and costs

When	What	Cost
Today	List your property and decide who gets what	—
Same day	Make the will: eMunshi asks the questions and drafts it	₹1,299, all-inclusive; optional advocate review ₹499
Same day	Print it, sign before two witnesses	—
Any time after	Register it, if you choose	The Sub-Registrar's fee, set by your state
Whenever your life changes	Make a fresh will	—

Documents to keep handy

• A list of your property and where each item is held.
• Full names, relationships and addresses of the people you are leaving it to.
• The name and address of your executor, and of a guardian for minor children.
• Two adult witnesses who are not beneficiaries, with their full names and addresses.
• Your earlier will, if any, so you can cancel it clearly.

Mistakes that sink people

• A beneficiary as witness. The will stands, but their gift is lost (Section 67).
• Witnesses who did not see you sign. Signing a will that was already signed, when you are not there, does not meet Section 63.
• Signing somewhere other than the end. The signature must show you meant the document as your will.
• No "residue" clause. Anything not mentioned passes as if there were no will.
• Forgetting to update. For wills to which Section 69 applies, marriage cancels an earlier will; for Hindus, Buddhists, Sikhs and Jains, Section 57 says marriage does not revoke the will. Either way, a marriage, a birth or a sale of property is a good time to make a fresh will.
• A will made under pressure. Section 61 makes a will, or any part of it, void if it was caused by fraud, coercion, or pressure that took away the testator's free will. Make your will on your own, and keep the people who benefit out of the room when you sign.

When to talk to an advocate first

If your property is in more than one country, you own a business, you are leaving out a close family member, someone in the family is likely to challenge the will, or you are Muslim, a short conversation with an advocate first is worth it. A 30-minute call starts at ₹999.