Introduction
A Will is an important legal instrument that enables an individual to determine how their assets should be distributed after their death. Proper estate planning can help minimise uncertainty, protect the interests of intended beneficiaries and reduce the likelihood of family disputes.
In India, the law governing Wills and inheritance depends on the applicable succession law and the circumstances of each case. Understanding the requirements for a valid Will, the role of probate and recent legislative developments is essential for effective estate planning.
What Is a Will?
A Will is a legal declaration of a person’s intentions regarding the distribution of their property after death. The person making the Will is called the testator, while those designated to receive benefits are known as beneficiaries. An executor is the person appointed to carry out the testator’s instructions and administer the estate in accordance with the law.
A Will may deal with immovable property, bank deposits, investments, personal belongings and other assets that the testator is legally entitled to dispose of. Clear drafting helps communicate the testator’s intentions and may reduce disputes among beneficiaries.
Essential Requirements of a Valid Will
For a Will to be legally effective, it must satisfy the applicable legal requirements. Important considerations include:
The applicable formalities may differ depending on the type of Will and the personal law governing the testator. Legal advice can help ensure that the document is properly prepared and executed.
What Is Probate and Why Does It Matter?
Probate is a judicial grant through which a competent court establishes the Will in accordance with the applicable legal procedure. It may be relevant when administering an estate, establishing testamentary rights or addressing disputes concerning the validity of a Will.
Probate is distinct from the Will itself. A Will records the testator’s wishes, whereas probate involves a court process relating to the Will and the authority of the executor.
Whether probate is required or advisable depends on the applicable law, the nature of the estate and the circumstances of the case.
The Repealing and Amending Act, 2025: What Has Changed?
The Repealing and Amending Act, 2025 (Act No. 37 of 2025), omitted Section 213 of the Indian Succession Act, 1925, with effect from 20 December 2025. Section 213 previously restricted the establishment of rights as an executor or legatee under a Will in court unless probate or letters of administration had been obtained in specified circumstances. The earlier provision applied differently depending on the testator’s religion and the geographical circumstances covered by the statute. The amendment removes this statutory restriction and marks a significant change in the legal framework governing testamentary succession.
However, the omission of Section 213 does not mean that probate proceedings have been abolished altogether. Probate and letters of administration remain part of the succession-law framework, and court proceedings may still be relevant where a Will is disputed or estate-related issues require judicial determination. Other applicable legal and documentary requirements must also be considered.
Accordingly, the need for probate or other proceedings should be assessed on the facts of each case, particularly where existing proceedings or rights may be affected by the amendment.
Wills and Inheritance for NRIs
Non-Resident Indians (NRIs) may hold interests in property, investments and other assets situated in India. Living abroad does not, by itself, prevent an individual from claiming inheritance under a valid Will or challenging a Will on legally recognised grounds.
NRI succession matters may involve proving entitlement as a beneficiary, administering an estate, addressing disputes or authorising a representative in India through a legally valid power of attorney.
A Will may be challenged on grounds such as fraud, coercion, undue influence, lack of testamentary capacity or failure to comply with applicable execution requirements. The success of such a challenge depends on the evidence and the relevant law.
NRIs dealing with property in India should obtain advice on the applicable succession rules, documentation and procedural requirements before initiating a claim or transferring inherited assets.
Conclusion
A carefully drafted Will is an important step towards ensuring clarity in the distribution of assets and reducing the potential for inheritance disputes. Compliance with applicable legal formalities, clear identification of beneficiaries and appropriate estate planning can help protect the testator’s intentions.
The omission of Section 213 of the Indian Succession Act, 1925, through the Repealing and Amending Act, 2025, has changed the statutory position concerning the requirement to obtain probate in specified circumstances. Nevertheless, the appropriate legal procedure continues to depend on the facts of the case and the applicable law.
Whether you require assistance with Will drafting, inheritance claims, probate proceedings or NRI succession matters, obtaining appropriate legal advice can help you understand your rights and available remedies.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. The application of succession laws depends on the facts and circumstances of each case. Readers should seek independent legal advice before taking action.
