Key points
- A will must be signed by the testator and attested by two witnesses; registration is optional but helps prove genuineness.
- Probate is not compulsory in Delhi for Hindu wills, but banks, the DDA and housing societies often insist on probate or letters of administration before transferring assets.
- A succession certificate under the Indian Succession Act is needed to collect debts and securities, such as bank deposits and shares, where there is no will.
Making a valid will
Section 63 of the Indian Succession Act, 1925 requires the will to be in writing, signed by the testator, and attested by two witnesses who saw the signature. It should name an executor, describe the assets, and deal with the residue. Registration under the Registration Act is optional. A Muslim may bequeath only one-third of the estate without heirs' consent and cannot bequeath to an heir without the other heirs' consent.
Proving the will
The propounder must prove execution through an attesting witness under Section 68 of the Evidence Act (now Section 67 of the Bharatiya Sakshya Adhiniyam) and dispel suspicious circumstances such as exclusion of natural heirs, active participation of a beneficiary, or a feeble testator. Probate is granted by the District Judge or the Delhi High Court depending on the value of the estate, on a petition with the original will and notice to the heirs.
When probate is required
Section 213 makes probate mandatory for wills of Hindus, Sikhs, Jains and Buddhists only where the will was made in, or concerns immovable property in, Mumbai, Chennai or Kolkata. In Delhi it is optional in law but often required in practice by institutions. Where there is no executor, letters of administration with the will annexed are sought.
No will
Hindu property passes under the Hindu Succession Act to Class I heirs equally. Muslim property passes in fixed shares under personal law. A legal heir certificate from the SDM identifies the heirs; a succession certificate from the court is required to collect debts and securities and gives the holder authority to receive payment.
Contesting a will
Heirs file objections in the probate petition, or a suit for declaration that the will is forged or obtained by undue influence. Forgery allegations are tested through handwriting experts and the attesting witnesses.
Frequently asked questions
How long does probate take in Delhi?
Uncontested petitions take six months to a year; contested ones become suits and take several years.
Is a nomination the same as a will?
No. A nominee receives the asset as a trustee for the legal heirs; the will or intestate succession decides who ultimately owns it, except for certain assets where statute gives the nominee ownership.
Related practice area: Property, Real Estate & Waqf
This article is for general information and does not constitute legal advice. Laws, rules and limitation periods change and depend on the facts; please take advice on your own situation before acting. Reading this article does not create a lawyer-client relationship with Akhtars Legalitarian.