Concept of Wills

A will is a written legal document in which a testator expresses his or her wishes regarding the distribution of the "estate" – all assets, liabilities and personal effects – after death. The will becomes operative only upon the testator’s death and is subject to probate, a court process that verifies its authenticity.

In the Indian context, the Indian Succession Act, 1925 governs wills for Hindus, Buddhists, Jains, Sikhs and others, while the Hindu Succession Act, 1956 applies to Hindus who do not execute a will. For Muslims, the personal law of Sharia governs succession, and a will ("Wasiyyah") can only allocate up to one‑third of the estate. Understanding these jurisdictional nuances is essential for advisers who serve a diverse client base.

Exam relevance: The NISM exam frequently asks candidates to identify which of the following is NOT a requirement for a valid will, or to choose the correct statutory provision for revocation. Remember that the definition of "estate" includes both assets and liabilities, a point that often trips candidates.

• Will – written expression of testamentary intent.
• Estate – total of assets minus liabilities at the time of death.

For a will to be valid, the following elements must be satisfied: (1) Testamentary Capacity – the testator must be of sound mind, meaning he/she understands the nature of making a will, the extent of the property, and the claims of potential heirs. (2) Free Consent – the will must be executed without coercion, undue influence or fraud.

3) Writing and Signature – the will must be in writing and signed by the testator. Hand‑written (holographic) wills are permissible if entirely in the testator’s handwriting and signed. 4) Attestation – at least two witnesses, who are not beneficiaries, must sign the will in the presence of the testator and each other. Witnesses must be competent adults.

Exam tip: Questions often present a scenario with a single witness or a beneficiary acting as a witness. Such a will is invalid. Memorise the "2‑witness rule" and the exclusion of beneficiaries from witnessing.

Execution begins with the testator drafting the document, preferably with legal assistance to avoid ambiguities. Once drafted, the testator signs the will in the presence of two witnesses. The witnesses must also sign, confirming they observed the testator’s signature and that the testator was of sound mind.

After signing, the original will should be kept in a safe place – a bank safe deposit box, a solicitor’s office, or with a trusted family member. A copy can be filed with the registrar of wills in some states, though registration is not mandatory. Failure to store the will securely often leads to loss, which the exam may probe through scenario‑based questions.

For digital documents, the Information Technology Act, 2000 allows electronic signatures, but the NISM syllabus emphasizes that traditional handwritten wills remain the standard for probate. Remember: the presence of a digital signature alone does not guarantee validity unless the jurisdiction expressly permits it.

A will can be revoked by: (1) executing a later will that expressly revokes the earlier one, (2) physically destroying the will (burning, tearing, obliterating) with the intent to revoke, or (3) a written declaration of revocation signed by the testator and witnessed. The revocation must be communicated to the same witnesses if possible.

Amendments, known as "codicils," are separate documents that modify specific clauses. A codicil must satisfy the same formalities as a will – written, signed, and attested by two witnesses. In practice, advisers often recommend drafting a fresh will instead of multiple codicils to avoid confusion.

Exam relevance: A multiple‑choice question may present a scenario where a testator tears up a will but does not inform the witnesses. The correct answer is that the will is revoked only if the testator intended to revoke and the act is proven, regardless of witness knowledge.

When a person dies without a valid will, the estate is distributed according to intestate succession rules laid down in the Indian Succession Act. The hierarchy typically follows: Class I heirs (spouse, children, mother), then Class II heirs (father, siblings, grandparents), and finally the State. These rules can lead to outcomes that differ markedly from a client’s wishes, especially for blended families.

Testamentary succession, on the other hand, follows the directions in the will. This allows the testator to allocate assets to non‑heirs (e.g., friends, charities) and to create trusts for minor beneficiaries. Advisers must highlight the tax and probate implications of both routes.

Exam focus: Candidates may be asked to identify the correct order of heirs under intestate succession or to compute the share of a Class I heir when the estate is divided among multiple heirs. Memorising the heir classes and their relative shares is essential.