War, will and witness: How the Indian Succession Act safeguards the last wishes of soldiers

In war zones, life is uncertain, and decisions must often be made in moments. In such high-risk environments, it’s ideal to have some clarity on one’s final wishes. A lesser-known provision under the Indian Succession Act, 1925—the Privileged Will—offers a vital safeguard for those serving on the frontlines, providing a clear path to protect their loved ones. 

Shraddha Nileshwar, Vertical Head–Will & Estate Planning at 1 Finance, said, “It gives peace of mind to soldiers, airmen, mariners, and support staff (like nurses or cooks) serving in active combat zones. As long as they are 18 years or older, they can make a will under relaxed rules. Merely being part of the armed forces isn’t enough — active engagement in a war zone is essential.”

Simplified legalities

The Indian Succession Act, 1925, under Sections 65 and 66, ensures that privileged wills for military personnel in active combat are authentic. Verbal or informal wills require clear intent and corroboration; they require two witnesses to validate the testator’s wishes, while informal written wills are valid if reflecting genuine intent and unrevoked. Courts scrutinise witness credibility and context to prevent fraud. In Sunita Shivdasani v. Geeta Gidwani (Delhi High Court, 2007), a soldier’s oral privileged will, made during active service, faced a challenge. The court upheld it, relying on consistent testimonies from two comrades who heard the declaration, stressing strict statutory compliance. This balances flexibility for soldiers with safeguards for families.

Unlike standard wills, which require signatures and two witnesses (registration remains the prerogative of the person creating the Will), privileged wills offer soldiers a special way to secure their assets. 

So, what is the privilege? According to Nileshwar, this privilege allows soldiers to make a will with relaxed formalities. The will can be made in one of the following ways:

(a) Handwritten by the soldier: If the soldier writes the entire will themselves by hand, it does not need to be signed or attested (witnessed).

(b) Oral will: The soldier can make an oral will in the presence of two witnesses, usually fellow soldiers or comrades.

(c) Written by someone else: If someone else writes the will on the direction of the soldier:

a. It must be signed by the soldier, but it still does not require attestation by witnesses.

b. If the soldier does not sign it, it can still be considered valid if it is proven that:

(i) The will was written under the soldier’s instructions; or

(ii) The soldier has accepted and acknowledged it as their own will.

Period of privilege

An oral will made under this provision remains valid only for 1 month after the soldier is no longer in a situation where they are allowed to make a privileged will, such as being out of danger or returning to civilian life—unless the will is cancelled or replaced within that time.

“If a soldier has earlier made a standard (unprivileged) will and later makes a privileged will during their period of such privilege being granted (e.g., during active duty or deployment), then the privileged will takes precedence—even if it’s made orally or under relaxed formalities,” said Nileshwar.

Challenges

Validating and executing privileged wills under the Indian Succession Act, 1925, poses challenges to the courts and legal heirs. Verbal wills, often declared in chaotic combat zones, rely on witness testimony, which may be inconsistent or unavailable due to casualties or redeployment. Incomplete or ambiguous written wills complicate intent verification. 

Courts face disputes over witness credibility, as seen in Sunita Shivdasani v. Geeta Gidwani (Delhi HC, 2007), where conflicting testimonies delayed validation. Heirs struggle with short validity periods (1-month after combat) and overriding prior wills, risking disputes. Solutions include awareness campaigns, pre-deployment legal counselling, and standardised templates for informal wills. Encouraging digital recordings, where feasible, and maintaining witness records can enhance authenticity, ensuring defence personnel’s wishes are protected while safeguarding families.

While privileged wills are a quiet promise to those risking all, legal consultation, when possible, can clarify intentions.