Signing Away the Future: Rules for Wills in India
Execution of Unprivileged Wills and Attestation
Privileged Wills for Soldiers, Airmen, and Mariners
By Vishwas Kumar
New Delhi: April 17, 2026:
The Indian Succession Act, 1925, provides a detailed framework for how wills must be executed to be legally valid. Sections 63 to 66 distinguish between unprivileged wills—those made by ordinary citizens—and privileged wills, which apply to soldiers, airmen, and mariners in special circumstances. Together, these provisions balance strict procedural safeguards with flexibility for those in extraordinary situations.
Section 63: Execution of Unprivileged Wills
Unprivileged wills are the standard form of wills made by individuals not engaged in warfare or at sea. The law requires strict compliance with three rules:
- Signature or Mark of the Testator (Clause a): The testator must sign or affix a mark on the will. Alternatively, another person may sign in the testator’s presence and under their direction.
- Placement of Signature (Clause b): The signature must be positioned to indicate that it was intended to give effect to the document as a will.
- Attestation by Witnesses (Clause c): At least two witnesses must attest the will. Each must either see the testator sign or receive acknowledgment of the signature. They must sign in the testator’s presence, though not necessarily simultaneously. No specific form of attestation is required.
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Judicial interpretations reinforce these requirements:
- In Gopal Swaroop v. Krishna Murari Mangal (2010), the Supreme Court emphasized that witnesses must see the testator sign or acknowledge the signature.
- In Dr. M. Ratna v. Kottiboyina Navaneetam (1994), it was held that acknowledgment of signature in the presence of attestors is essential.
- Courts have clarified that use of different inks or pens is not suspicious (Radharani Devi v. Kadambini Devi, 1995).
- Witnesses need not be formally labelled as “attesting witnesses” (K.M. Verghese v. K.M. Ooknnen, 1994).
The principle of overriding effect of the latest will is also crucial. In Mahesh Kumar v. Vinod Kumar (2012), the Supreme Court held that even without explicit cancellation of earlier wills, the latest validly executed will prevails, as it represents the testator’s final intention.
Section 64: Incorporation by Reference
A will may incorporate another document by reference, provided the document existed at the time of execution and the testator knew its contents. This principle was clarified in Anil Kak v. Kumari Sharala Raji (2008), where the Supreme Court held that documents cannot be created later and then incorporated.
Section 65: Privileged Wills
Privileged wills apply to soldiers, airmen, and mariners in extraordinary circumstances such as expeditions, warfare, or being at sea. These individuals, due to the risks of their profession, are granted greater flexibility in making wills.
Illustrations clarify the scope:
- A medical officer in an expedition qualifies as a soldier.
- A mariner at sea, even temporarily ashore while the ship is in harbor, can make a privileged will.
- An admiral living on shore, however, is not considered “at sea” and cannot make a privileged will.
Section 66: Mode of Execution of Privileged Wills
Privileged wills may be written or oral, with relaxed requirements:
- Handwritten by Testator: No signature or attestation required.
- Written by Another: If signed by the testator, attestation is unnecessary. If unsigned, it is valid if written under the testator’s direction or recognized by him.
- Incomplete Execution: If execution was not completed due to external causes, the will may still be valid.
- Written Instructions: If instructions were given but the will was not prepared before death, the instructions themselves constitute the will.
- Verbal Instructions: If given before two witnesses and reduced to writing during the testator’s lifetime, they are valid.
- Oral Declaration: A soldier, airman, or mariner may declare intentions orally before two witnesses. However, such oral wills lapse one month after the testator ceases to be entitled to make a privileged will.
This flexibility reflects the realities of military and maritime life, where formal execution may be impossible.
Analytical Observations
- Strict vs. Flexible Framework: Unprivileged wills demand strict compliance, while privileged wills allow exceptions due to extraordinary circumstances.
- Judicial Safeguards: Courts scrutinize execution and attestation to prevent fraud, while also recognizing practical realities.
- Final Intention Principle: The latest valid will always overrides earlier ones, ensuring that succession reflects the testator’s most recent wishes.
- Incorporation by Reference: This principle allows wills to integrate other documents, but only if they pre-exist and are known to the testator.
Together, these provisions ensure that wills are both legally secure and practically adaptable.
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OF THE EXECUTION OF UNPRIVILEGED WILLS
63. Execution of unprivileged wills. — Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [1][or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:—
(a) The testator shall sign or shall affix his mark to the will or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence an d by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.
COMMENTS
(i) A Will is required to be attested by two or more witnesses each of whom has seen the Testator signing or affixing his mark on the Will or has seen some other person signing the Will in the presence and by the direction of the Testator or has received from the Testator a personal acknowledgement of the signature or mark or his signature or the signature of such other person and that each of the witnesses has signed the Will in the presence of the Testator, Gopal Swaroop v. Krishna Murari Mangal, (2010) 12 SCALE 470: 2010 (8) SLT 541.
(ii) No legal right accrues under an unprobated Will except in case where taking of probate is not necessary, Krishan Kumar Birla v. Rajendra Singh Lodha, 2008 (5) SCR 640: 2008 (4) SCC 300.
(iii) In order to prove the execution of Will it is absolutely necessary that the testator must have signed the will in the presence of the attestors or the testator must have personally acknowledged his signature are in the presence of attestors; Dr. M. Ratna v. Kottiboyina Navaneetam, AIR 1994 AP 96.
(iv) Use of different inks by scribe-testator and attestors is not suspicious circumstance. There is nothing abnormal in use of different pens with different inks in a document where number of persons were involved in scribing and signing the document; Radharani Devi v. Kadambini Devi, AIR 1995 Ori 88.
(v) For the genuineness of the Will it is required to be proved whether two attesting witnesses have seen the testator sign and they signed in presence of the testator; S.A. Quddus v. S. Veerappa, AIR 1994 Karn 20.
(vi) If no form is prescribed for attestation, then witness need not be labelled as attesting witness; K.M. Verghese v. K.M. Ooknnen, AIR 1994 Ker 85.
(vii) As regards attestation of Will, the clause (c) of section 63 required that the Will shall be attested by two or more witnesses. It is not necessary that both of them be present simultaneously at the time of putting their signatures but the requirement is that each of the attesting witness must have seen the testator sign or affix his mark to the Will or has received from the testator a personal acknowledgement of his signature or mark on the will. There is also an additional requirement that each of the attesting witness shall also sign the Will in the presence of the testator; Smt. Punni v. Sumer Chand, AIR 1995 HP 74.
Overriding effect of latest Will
Absence of a categorical recital in latest will that earlier Will was cancelled. Absence of such recital has no relevance once execution of latest Will is duly proved. Earlier Will automatically becomes redundant because second Will represents last Will and wish of the testator; Mahesh Kumar v. Vinod Kumar, (2012) 4 SCC 387: 2012 (3) JT 333: 2012 (3) SCALE 388: 2012 (2) SLT 629.
64. Incorporation of papers by reference. — If a testator, in a will or codicil duly attested, refers to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the will or codicil in which it is referred to.
COMMENTS
For invoking the principle of incorporation by reference, a document must be in existence and it cannot be brought into existence later on. The executor of the document must know what the other document which he intends to incorporate in the Will contains; Anil Kak v. Kumari Sharala Raji, AIR 2008 SC 2195: 2008 (6) SCR 1009.
CHAPTER IV
OF PRIVILEGED WILLS
65. Privileged wills. — Any soldier being employed in an expedition or engaged in actual warfare, [2][or an airman so employed or engaged,] or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in section 66. Such wills are called privileged wills.
Illustrations
(i) A, a medical officer attached to a regiment is actually employed in an expedition. He is a soldier actually employed in an expedition and can make a privileged will.
(ii) A is at sea in a merchant-ship, of which he is the purser. He is a mariner and, being at sea, can make a privileged will.
(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in actual warfare and as such can make a privileged will.
(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she is lying in harbour. He is, for the purposes of this section, a mariner at sea and can make a privileged will.
(v) A, an admiral who commands a naval force, but who lives on shore and only occasionally goes on board his ship, is not considered as at sea and cannot make a privileged will.
(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier and can make a privileged will.
COMMENTS
A testator by making a Will does not alter the existing state of things in regard to the property. It follows that making a Will in regard to a property does not violate an order of status quo in regard to such properties hence dispute not void; N. Ramesh v. Nagaraj, AIR 2001 Karn 395.
66. Mode of making and rules for executing, privileged wills. —
(1) Privileged wills may be in writing, or may be made by word of mouth.
(2) The execution of privileged wills shall be governed by the following rules: —
(a) The will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.
(b) It may be written wholly or in part by another person and signed by the testator. In such case it need not be attested.
(c) If the instrument purporting to be a will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by the testator's directions or that he recognised it as his will.
(d) If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.
(e) If the soldier, [3][airman] or mariner has written instructions for the preparation of his Will but has died before it could be prepared and executed, such instructions shall be considered to constitute his will.
(f) If the soldier, 1[airman] or mariner has, in the presence of two witnesses, given verbal instructions for the preparation of his Will and they have been reduced into writing in his lifetime, but he has died before the instrument could be prepared and executed, such instructions shall be considered to constitute his will, although they may not have been reduced into writing in his presence, nor read over to him.
(g) The soldier, 1[airman] or mariner may make a will by word of mouth by declaring his intentions before two witnesses present at the same time.
(h) A will made by word of mouth shall be null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged will.
FAQ: Execution of Wills
Q1. How many witnesses are required for an unprivileged will? At least two witnesses must attest the will, signing in the presence of the testator.
Q2. Must both witnesses be present at the same time? No. Each must sign in the testator’s presence, but not necessarily simultaneously.
Q3. Can a will incorporate another document? Yes, but only if the document existed at the time of execution and the testator knew its contents.
Q4. What is a privileged will? A will made by soldiers, airmen, or mariners in expeditions, warfare, or at sea, with relaxed formalities.
Q5. Can a privileged will be oral? Yes. It may be declared orally before two witnesses, but lapses after one month if circumstances change.
Q6. Does the latest will override earlier ones? Yes. The most recent valid will represents the testator’s final intention, even without explicit cancellation of earlier wills.
Q7. Is use of different inks suspicious? No. Courts have held that different inks or pens do not invalidate a will.
Q8. Can incomplete execution invalidate a privileged will? Not necessarily. If non-execution is due to external causes, the will may still be valid.
These rules highlight the balance between formal safeguards for ordinary wills and flexibility for those in extraordinary circumstances, ensuring that testamentary intent is respected across diverse situations.