Why Indians delay writing a will
For many of us, drafting a will feels like an exercise in pessimism — an admission that something will, eventually, go wrong. Religious and cultural reluctance to discuss death plays a part. So does the assumption that "the family will sort it out". The unfortunate truth is that the family rarely does, and when they don't, the law steps in with a one-size-fits-all answer that almost never matches what the deceased actually wanted.
What happens when there is no will
Where a person dies intestate (without a will), succession is governed by the personal law applicable to the deceased — most commonly the Hindu Succession Act, 1956 for Hindus, Sikhs, Jains and Buddhists; the Indian Succession Act, 1925 for Christians and Parsis; and Muslim personal law for Muslims. Each of these statutes prescribes a fixed list of legal heirs and shares.
What this means in practice is rigid and often unfair:
- A long-time friend, an unmarried partner or a charity will receive nothing.
- A spouse may receive only a fractional share, with the rest divided amongst children and parents in proportions the deceased may have strongly disagreed with.
- Self-acquired assets pass under the same fixed scheme as ancestral property — even though the deceased had every right to direct otherwise.
- The family is forced to obtain a succession certificate or letters of administration from court, a process that can take 12 to 24 months and is needlessly expensive.
What a will can do
A properly drafted will is a remarkably flexible instrument. It can:
- Direct who inherits which asset, in what share, and on what conditions.
- Provide for children with special needs, dependent parents, or staff who served the family long.
- Appoint an executor — the person who will administer the estate without the courts having to choose.
- Nominate guardians for minor children.
- Establish a private trust to manage assets for beneficiaries who are not yet ready to receive them outright.
- Set out the deceased's wishes for funeral, organ donation and digital assets — wishes the law would otherwise leave entirely to the family's discretion.
Five reasons every adult should draft one
1. Protect your family from ambiguity
A will replaces guesswork with clarity. Family disputes after a death are rarely about money — they are about fairness, and a will is the only document that can record what the deceased considered fair.
2. Honour your wishes precisely
Property may be self-acquired but the personal-law default rules treat it the same as ancestral property. If you want a particular grandchild to inherit a particular flat, or if a long-standing friend has been more family than your blood relations, only a will can say so.
3. Reduce the time and cost of administration
An executor named in a will can act on the strength of the will and a death certificate. Without a will, the family will need to obtain a succession certificate (for movables) or letters of administration (for immovables) — a process that takes one to two years in Delhi and costs court fees calculated on the value of the estate.
4. Provide for those the law forgets
A will is the only way to provide for a partner you are not married to, a step-child, a charity, a long-serving employee or a friend who supported you in difficult years.
5. Plan for tax and stamp duty
Wills attract no stamp duty in India and are not compulsorily registrable. Inter-vivos gifts, on the other hand, attract stamp duty in most states. A will is therefore one of the few instruments that allows you to direct a transfer of significant value without the state taking a slice in advance.
The mechanics — what makes a will valid in India
Under section 63 of the Indian Succession Act, 1925, a will is valid if:
- The testator (the person making the will) signs or affixes a mark to the document.
- The signature is intended to give effect to the writing as a will.
- Two or more witnesses attest the will, having seen the testator sign — and signed in the testator's presence themselves.
Registration is optional but strongly recommended. A registered will is harder to challenge as a forgery, and the original remains in the safe custody of the sub-registrar. Notarisation alone, by contrast, has no special evidentiary weight under Indian law.
"A will costs a few thousand rupees to draft and register. The absence of one frequently costs the family lakhs in court fees, and a great deal more in goodwill."
Common mistakes to avoid
- Vague descriptions of assets. "My house in Delhi" is meaningless if you own three. Use full addresses, account numbers and folio numbers.
- Conditional bequests that violate public policy. A bequest cannot be conditional on the beneficiary not marrying, or marrying within a particular community, beyond limits the courts have repeatedly struck down.
- Witnesses who are also beneficiaries. A bequest to an attesting witness is void under section 67 of the Succession Act, even if the will itself is valid.
- Forgetting digital assets. Bank accounts and dematerialised securities should be addressed expressly. Email accounts, social media handles and crypto wallets are increasingly part of the estate too.
- Not updating the will. A will should be reviewed every three to five years, and after every major life event — marriage, divorce, the birth of a child, the death of a beneficiary or a significant change in assets.
The cost of doing nothing
The chamber regularly sees families who lose two years and a substantial part of the estate in succession proceedings that a one-page will could have avoided. The chamber also sees children of second marriages, friends who were like family, and charities the deceased intended to support — all of whom go away with nothing because the deceased never put pen to paper.
If you have not yet made a will, the best time to do so was when you acquired your first significant asset. The next best time is now.