Intestate succession: Oral will not legally binding in India

My brother-in-law passed away in a hospital last year. Before his death, he gave oral instructions on how he wanted his assets divided and asked me to carry out his wishes. He did not leave behind a written will. Now, his mother is claiming a share of his assets, which my sister is contesting based on the oral instructions. I have been asked to mediate this situation as the “executor” of the oral will, but I am unsure if I have the authority to do so. Could you please advise?

—Name withheld on request

In India, a will cannot be made orally and must be written and signed in the presence of at least two witnesses. The only exceptions to this rule are oral wills by certain personnel of the armed services who are engaged in combat. 

Assuming that the exception does not apply to your brother-in law, his oral declaration before his demise is not a valid will and, as a result, you cannot be termed as the ‘executor’ of his will. 

You may nevertheless mediate a dispute among the family members in your personal capacity, but you would not have any formal authority or legal rights to take decisions regarding your brother-in-law’s estate since your appointment as executor would not be recognised by law. 

As your brother-in-law did not have a previous valid will, he is said to have passed away ‘intestate’. As regards the contrary claims of your sister and her mother-in-law, the same would depend on the personal law of intestate succession applicable to your brother-in-law. 

Assuming he was Hindu, Buddhist, Sikh or Jain, his spouse (your sister) and his mother (your sister’s mother-in-law) would both have a share in his estate. 

They may consider resolving the differences by entering into a family settlement to allocate the estate between the heirs, and for this, they may take guidance from the oral instructions given by your brother-in-law, but they would not be bound by such instructions.  

The above response is based on the Indian Succession Act, 1925, which mandates that a will must be signed or marked by the testator himself or signed by some other person in the presence of the testator, or on his direction, and must be attested by at least two witnesses. 

Note that this applies to persons of all religions, except Muslims, and separate legal advice in this regard may be sought. 

—Shaishavi Kadakia is a partner and Radhika Parthasarathy is a senior associate at Cyril Amarchand Mangaldas, Mumbai.