May 26,2020 | 9 min read

WILL: Registration Mandatory or Optional?

Author - Sanjiv Dagar

No, it is not necessary to register a Will, even where it relates to immovable property. The registration is optional, under Section 18 of the Registration Act, 1908. But, is advisable to register a WILL as a registered WILL cannot be tampered with, mutilated, destroyed or stolen. It is generally considered as a genuine WILL. A WILL has to be in writing, there is no sanctity, validity or authenticity of a verbal WILL in India. A WILL once written can be registered subsequently. Normally a document must be registered within 4 months of its execution as per the Registration Act, 1908; but, Section 23 read with Section 27 of the Indian Registration Act carves out special exemption to WILL, and allows registration of WILL subsequent to its execution, and without any time limit. But, WILL has to be drawn properly so as to convey its true meaning, signed/executed and must have at least 2 witnesses (Section 63 in The Indian Succession Act, 1925).

Parties to a WILL: Testator, Executor, Beneficiary, Guardian, and Trustees. A testator is the author of WILL, who creates the WILL of his estate. An executor is best reliable person of the Testator, who would carry out instructions of WILL, after death of Testator. An executor is responsible to manage the assets until they are disbursed according to WILL. There is generally no requirement for a Guardian unless the beneficiaries are growing children. A guardian provides for essential needs till they attain the age of Major. Sometimes a Trust is created for the estate of deceased. The Testator appoints a trustee to manage the trust for ultimate beneficiaries.

A WILL or testament is a legal document, must be in writing. Although there is no standard format of WILL but, it should be writing in conspicuous and transparent manner, so as to avoid ambiguity or different interpretation of any clause in it. It should be written in most possible simple manner, so as to convey direct meaning to anyone who reads the WILL. It is accepted worldwide in the Courts of Law, wherever it is written or handed over to some other person other than the author / testator. The author of the WILL called Testator also, expresses his desire to bequeath the ownership of his property to someone. The property of the deceased is normally given to the survivors of the deceased. But, the testator has discretion to give and assign his property to anyone, as he chooses as per his sole discretion. Sometimes, the strangers may get share in the property of the deceased, which causes surprise to the legal heirs / survivors of the deceased, who were actually expecting share in that property as the natural claimants of the property of the deceased.

The Testator / Author expresses his wishes as to how his property will be distributed after his death, and names one or more persons as beneficiary of the property of the deceased. The testator nominates someone, called the Executor, to manage the Estate until its final distribution. The executor is neither the owner of the property of the deceased, nor a beneficiary, but plays a limited role as temporary custodian for the devolution of property to the beneficiaries. The word "WILL" validly applies to both personal and real property. A will may also create a testamentary Trust that is effective only after the death of the Testator.

The importance of WILL cannot be ignored as millions of cases are pending before various Courts for resolving inheritance disputes, normally because of absence of WILL. A WILL once executed is revocable anytime during the lifetime of the person and is a confidential document. The signature or mark of the testator, must be so placed that it appears that it was intended to give effect to the writing of a WILL. The WILLshould be attested by two or more witnesses, as required under Section 63 of the Indian Succession Act, 1925. The witnesses must have seen the testator sign the WILL and submit before the Court when required.

A Joint WILL can also be created if two or more persons agree to make a conjoint WILL. It is intended to take effect after the death of both the persons. Similarly in a Mutual WILL, the testators confer upon each other reciprocal benefits. A mutual WILL can be executed by husband and wife, during their lifetime to pass on all benefits to the other spouse during their lifetime.

How to Register a WILL:

There is no requirement to pay Stamp duty, Court fees or Registration Fees for creating a WILL. It is created on a plain paper. It evidences that the parties (Testator and Witnesses) had appeared before the registering officers (normally Sub-Registrar) for Registration of WILL. The officer attests the document after ascertaining the identity of parties. Registration of a WILL is not compulsory in India even where it relates to immovable property. Registration evidences the genuineness of the a WILL. A copy of Registered WILL kept in the safe custody of the Registrar for future reference. Some States provide exemption from Probate of WILL, and accordingly, the property is directly transmitted to the beneficiaries according to WILL. There is no inheritance tax in India, the property is transferred based on genuine WILL without payment of Stamp Duty, whereas in other forms of Transfers, a requisite amount of Stamp Duty is payable.

Whether WILL is a conclusive Document? 

No, it is not a conclusive document. A WILL, registered or unregistered can be challenged, and once it is so done, the document (WILL) has to be through entire trial process. But, the success rate of such a challenge for a registered WILL is comparatively negligible as compared to an unregistered WILL. A registered WILL is usually accepted by Courts, whereas an unregistered WILL casts doubt on its authenticity when the estate is bequeathed to an unrelated person outside the family of the deceased. Any person can challenge the WILL, as long as such person can demonstrate before the Court any malice, fraud or tempering with the document. It means anyone who may have an interest in the estate of the WILL can challenge it. 

The law of WILL is liberal. There are no specific formats or restrictions enforced on a WILL. It is therefore left to the Testator to write as per his own discretion. The WILL supersedes the provisions of the Indian Succession Act, 1925. The heirs have right in the property of deceased under the Indian Succession Act. But, when a WILL is executed, the heir cannot claim anything under the Succession Act, whereas the terms / stipulations mentioned in the WILL shall prevail over any other document or right. Therefore, this document of WILL is normally called as a Last WILL, as the testator is expected not to have created a third party interest in his property after writing a WILL. However, in case the testator happens to create any third party interest in his property even after creating a WILL, but before his death, he can do so. Accordingly, he should amend / alter or re-write his WILL. It is always advisable to periodically amend the WILL, showing latest and true position of the estate of the Testator. A registered WILL should ideally be replaced with another registered WILL.


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ABOUT THE AUTHOR


Sanjiv Dagar

We have privilege to serve big brands in various sectors like e-commerce, Banking & Finance, Software, Technology, Food & Beverages, Pharma & Hospitality. Our Law Firm is backed by a collective Legal experience of more than 60 years. Our team, after having worked in the industry, is able to provide practical solutions to vexed problems within the framework of the laws of the land. We have shown successful delivery to Corporate giants.

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