By Sujit Bhar
The last will and testament of a person is often regarded as an almost sacred document. It is the final expression of an individual’s wishes about what should happen to his or her property after death. When such a will is registered, the sense of security becomes even greater. Families tend to assume that registration has put an official seal on the document and that its contents cannot easily be challenged.
The reality, however, is very different.
A will can contain errors of commission and omission. It can describe property incorrectly, identify family relationships wrongly, leave out heirs without explaining why, or contain language that the person making the will may never have understood. A greater difficulty can arise years later when the people who witnessed the will cannot be found. They may have died, moved away or simply become untraceable.
The Supreme Court has now provided an important reminder of this vulnerability.
In Pazhanathal (Dead) through LRs vs Alamathal (Dead) through LRs, decided on August 13, 2026, a bench of Justices Sanjay Karol and N Kotiswar Singh held that a will cannot be treated as valid merely because it carries the testator’s signature or thumb impression or has been registered. The person relying upon the will must establish its due execution and attestation in accordance with Section 63(c) of the Indian Succession Act and the applicable rules of evidence.
Every unprivileged will (a standard written testament made by any ordinary citizen who does not qualify for a relaxed military or maritime “privileged” will) must be attested by at least two witnesses. Under Section 63(c), the witnesses must have seen the testator sign or affix a mark, or must have received a personal acknowledgment of that signature or mark. Registration does not remove this statutory requirement.
This distinction is crucial. A registered will is not necessarily a proved will.
ABSENT WITNESSES
The Court also dealt with the practical question that troubles many families: What happens when the attesting witnesses are unavailable?
Ordinarily, the will has to be proved through an attesting witness. Section 68 of the old Indian Evidence Act provided the ordinary mechanism. Section 69 provided a substituted mechanism where no attesting witness could be found. But Section 69 is not a convenient alternative that the person relying on the will can simply elect to use.
The person propounding the will must first establish that examination of an attesting witness has become impossible—for example, because the witnesses are dead or cannot, despite proper efforts, be found. Only then can the substituted method of proof become available. The Supreme Court made clear that a bare assertion that a witness has died or is unavailable is insufficient.
There is another important point. One attesting witness can, in appropriate circumstances, prove the entire ceremony. But if the witness examined merely proves his own signature and cannot establish the participation of the second attesting witness, the statutory requirement has not necessarily been satisfied. The will must still be shown to have been properly attested by two witnesses.
The case becomes particularly significant because the problem was not merely technical.
The will itself contained several troubling inaccuracies. Property which had actually been inherited was described as “self-acquired”. The scribe admitted that he had drafted the recital without verifying the root of title. A step-daughter was described as a biological daughter and her descendants were described accordingly. Natural branches of the family were excluded without an explanation. The testatrix was illiterate and had affixed a thumb impression.
None of these circumstances, considered in isolation, necessarily makes a will invalid. But taken together, they create what the law calls suspicious circumstances. The person relying upon the will then has to provide cogent and independent evidence that the testator understood what she was doing and freely adopted the document as her testamentary wish.
And this is where the Supreme Court judgment moves beyond a dispute between two branches of a family.
WHO IS RESPONSIBLE FOR THE DRAFT?
It raises the uncomfortable question of who is responsible for ensuring that a will is properly made in the first place.
Consider an illiterate or poorly educated property owner. Such a person may possess a house, agricultural land or other assets accumulated over a lifetime. He or she may want to leave these assets to particular children, grandchildren or other relatives. The person may appoint one of those people as executor.
However, does the executor necessarily understand the legal meaning of the document?
Often, no.
The executor may simply know that the deceased wanted him or her to distribute the property in a particular manner. The executor may never have participated in drafting the document and may not know why particular descriptions were used. If the will incorrectly says that inherited property was self-acquired, the executor may have no idea that this distinction could become legally important decades later.
This places enormous importance on the person drafting the will.
There is, however, no general rule that a will must be drafted by a lawyer. A person can make a handwritten will, provided the statutory requirements are satisfied. This is important in a country such as India, where millions of people may not have easy access to lawyers or may simply not be able to afford professional legal assistance.
Making lawyers compulsory would have an unintended consequence: many people might stop making wills altogether. The solution, therefore, cannot simply be to say that every will must be drafted by an advocate.
Instead, India needs a system that makes basic testamentary literacy widely available.
A GOVERNMENT-APPROVED FORMAT?
A simple government-approved will format could be developed in multiple Indian languages. It could contain plain-language questions: What properties do you own? How did you acquire them? Are any of them inherited? Who are your legal heirs? Are you excluding anybody who would ordinarily inherit? If so, why? Are any beneficiaries adopted children, step-children or other relatives whose relationship should be accurately described?
The form could also require the testator to acknowledge that the contents have been read out and explained in a language he or she understands, particularly where the person is illiterate.
This would not make a lawyer compulsory. It would simply make the process safer.
The government could go further. Legal Services Authorities, registration offices and local administrative bodies could provide basic will-awareness and verification services, particularly for elderly and economically weaker citizens. The objective should not be to adjudicate whether the will is wise. It should be to prevent obvious drafting mistakes.
The role of the executor also needs greater public understanding.
An executor is not merely a person named in a document. The executor may ultimately have to locate assets, identify beneficiaries, deal with property records, pay debts and taxes where applicable, and distribute the estate according to the legally effective testamentary wishes.
ANOTHER IMPORTANT QUESTION
However, what happens when the will itself contains a material error?
The executor cannot rewrite it. Nor can the executor assume that because the deceased intended something, the court will automatically give effect to it. The ultimate question may become one for a court if the wording creates ambiguity or conflict with succession law.
This is why the safest will is not necessarily the longest will. It is the one that accurately identifies the person, the property, the beneficiaries and the intention behind the disposition.
The question concerning the step-daughter is particularly revealing.
Suppose a will says that a step-daughter is the testator’s “biological daughter”. That description is factually wrong. But the error in description does not automatically mean that the step-daughter loses her legal rights.
The legal effect of adoption depends on the applicable adoption and succession law and on the facts of the case. A drafting error in describing the relationship should not, by itself, be treated as a declaration that the person has no rights. What matters is whether the identity of the beneficiary can otherwise be established and what legal status the adopted child possesses under the governing law.
Indeed, the Supreme Court’s concern in the present case was not that every factual mistake automatically destroys a will. Its concern was whether the mistakes, considered cumulatively, raised a serious question about whether the illiterate testatrix actually understood and voluntarily adopted the contents of the document.
That distinction is vital.
A court should not allow a genuine testamentary intention to be defeated by a harmless drafting error. At the same time, it cannot permit a beneficiary to use a defective document to obtain property where there is inadequate evidence that the document represented the testator’s informed and voluntary decision.
This is the delicate balance the courts have to maintain.
There is, therefore, a larger public-policy lesson in this judgment.
A PROPERLY VETTED SYSTEM
India has traditionally treated wills as private documents. The State largely enters the picture only when a dispute reaches a court or when registration is sought. But an ageing population, rising property values, changing family structures and increasing numbers of complicated family relationships make this increasingly inadequate.
The answer could be a three-tier system.
- First, there should be simple, multilingual and legally vetted will templates freely available to citizens.
- Second, there should be accessible assistance for vulnerable testators, particularly illiterate and elderly persons, to ensure that the contents are explained and accurately recorded.
- Third, there should be better preservation of execution records. A will made today may be litigated 20 or 30 years later. The names, addresses and contact details of attesting witnesses should, therefore, be preserved. Where possible, a registration or public record system could retain an indication of the witnesses and execution process without necessarily making the contents of the will public.
Technology can help here, but technology should not replace legal safeguards.
The fundamental principle should remain that a person is entitled to decide what happens to his or her property after death. But that freedom is meaningful only if the legal system can distinguish between a genuine testamentary decision and a document whose contents were never properly understood or proved.
A LARGER PICTURE
The Supreme Court has, therefore, done more than reject one disputed will. It has reminded Indians that registration is not a magic stamp, a thumb impression is not proof of understanding, and the appointment of an executor does not cure defects in the document.
A will should certainly be respected. But it must first be shown to be a will in the eyes of the law.
And perhaps the greatest lesson is that testamentary planning cannot begin with the sentence, “I have made my will.” It should begin with another question: “Have I made a will that my family and a court will still be able to understand and prove after I am gone?”
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