Drafting a Will (Bakapatra/Icchapatra) in Nepal: Legal Validity & Process 2025

The Myth: “I can give my property to anyone I want.”

In Western countries, you can write a Will leaving everything to your cat or a charity, ignoring your children. In Nepal, this is generally NOT possible.

Inheritance law in Nepal is governed by the Muluki Civil Code 2074, which strikes a balance between your freedom to give away property and your family’s “Birth Right” (Janmasiddha Adhikar) to ancestral assets. Understanding this distinction is the first step to drafting a valid Will (often referred to as Icchapatra or colloquially termed Bakapatra in some contexts).

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1. Ancestral vs. Self-Earned Property: The Golden Rule

Before you write a Will, you must classify your property. The law treats them differently.

A. Ancestral Property (Sabaiko Sampatti)

Property inherited from forefathers (parents, grandparents).

• The Rule: You cannot give 100% of this to one person via a Will.
• Why? Your spouse and children have an equal claim to this property by birth. You only “own” your specific share (e.g., if you have a wife and two sons, you effectively own only 25% of the total ancestral pot).
• Testamentary Power: You can only Will away your share (after partition) to someone else. You cannot sign away your son’s share.

B. Self-Earned Property (Swa-Arjit Sampatti)

Property you bought with your own earnings, knowledge, or skill.

• The Rule: You have 100% freedom.
• Testamentary Power: You can Will this entirely to one child, a stranger, or a charity. Disinheriting children is “legal” only for self-earned property.
• The Catch: You must prove it is self-earned (e.g., salary slips, business profit proofs). If the source of funds is unclear, courts often presume it is Ancestral.

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2. Requirements for a Valid Will (Section 205 Civil Code)

A handwritten note in a diary is invalid in Nepal. For a Will to be legally binding, it must meet these criteria:

1. Written Document: It must be clearly written (typed or handwritten).
2. Sound Mind: The Testator (person making the Will) must be of sound mind and not under duress.
3. Witnesses: At least two witnesses must sign the document. Crucial: Beneficiaries (people getting the property) cannot be witnesses.
4. Clear Fingerprints: Thumbprints (Laychap) of the Testator and witnesses are mandatory.

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3. The Registration Process

Technically, an unregistered Will is valid if it meets the above criteria. However, executing an unregistered Will after death leads to massive court battles. Registration is highly recommended.

Where to Register?

• Option A: District Court: You can register the Will purely at the District Court.
• Option B: Local Ward Office: Some wards register documents, but court registration is stronger.

The Process:

1. Drafting: A lawyer drafts the Icchapatra listing all assets and beneficiaries clearly.
2. Physical Presence: The Testator and witnesses must appear before the Registrar / Judge.
3. Verification: The official verifies the Testator is of sound mind and signing voluntarily.
4. Sealing: The Will is often sealed. The details remain private until death.

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4. Can a Will be Challenged?

Yes. In fact, Wills are the most litigated documents in Nepal. Common grounds for cancellation include:

• “Undue Influence”: Claiming the beneficiary forced the parent to sign.
• Mental Incapacity: Claiming the parent had dementia or was too old to understand.
• Ancestral Claim: Proving the property was actually Ancestral, meaning the parent had no right to give it all away.

Pro Tip: If you are old or ill, get a Medical Certificate from a doctor stating you are of sound mind on the day you sign the Will. This makes it very hard to challenge later.

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Conclusion

Drafting a Will is the best way to prevent a family feud after you are gone. But remember: in Nepal, you cannot completely ignore your immediate family unless your wealth is 100% self-made.

• For Ancestral Property: Do a Property Partition (Ansabanda) first, then Will your share.
• For Self-Earned: Document the source of income, then write your Will freely.

Disclaimer: This article provides general legal information. For drafting a loophole-free Will, consult a specialized lawyer.