In this blog post, Suprateek Neogi from Rajiv Gandhi National University of Law, Punjab, talks about how to register a will in India.
What is a Will?
A will is a declaration of the writer of the will about how he or she wishes to distribute his or her property after their demise. A will cannot deal with ancestral property, it only deals with self-owned property.
In the case of “Maturi Pullaian v. Maturi Narasimham”, the court ruled that registration of a will is not compulsory. A will, which is properly signed and clearly expresses the wishes of the testator will be legally valid even if it is not registered with the Registrar. This exception falls under Section 18 of the Registration Act, 1908 which regulates the registration of official documents.
A will needs to be interpreted such that the intention of the testator is clearly known irrespective of the words of the will seeming ambiguous. This was established in the case of Rajrani Sehgal v. Dr. Parshottam Lal (1992).
In the case of Badari Basamma v. Kandrikeri (1984), the court has held that in the case of two wills, the latter one will prevail.
Some Basic Terms and Definitions Related to Will
The person whose will it is, or who writes it.
Section 2(c) of the Indian Succession Act defines executor as the person whose responsibility is to execute the wishes of the deceased contained in the will.
In case no executor has been appointed by the deceased, the court appoints an administrator to carry out the responsibilities of an executor.
Estate is basically the total value of everything you own. It can also be defined as the net worth of the person including all the properties, bank accounts, cash in hand etc.
A legatee or beneficiary of a will is basically all those who benefit from the will. The people or entities to whom the estate is bequeathed are called the legatee.
Section 2(f) of the Indian Succession Act defines probate as the certified copy of the will with the seal of the court. It acts as an evidence of the existence of the will and also of the executor.
- Holographic will
A handwritten will is called a holographic will. A holographic will is preferable because it is easier to verify the will to be genuine. This is because every person has a unique handwriting.
Types of Wills
- Privileged wills
As the name indicates, these wills can be executed by certain people. Any soldier or airman engaged in warfare, mariner currently at sea, any military medical officer on duty in an expedition and any naval officer at sea can make a privileged will.
A Privileged Will may be written or oral.
- If a privileged will is written (completely or partly) by the testator, it need not be signed.
- If it is written by someone else and without any signature of the testator, it is valid if it can be proved that it was written as per the testator’s wishes.
- In case the will is not executed as per the wishes of the testator, it shall not be invalid only if it can be proved that some factor other than abandonment of intentions to execute the will was responsible for the same.
- The death of the executor before execution of the will will not make the will invalid.
Oral Wills need two witnesses
- Oral wills can be called invalid if the testator is no more qualified to make a privileged will within a month (in case he or she is still alive).
A privileged will may be revoked by a letter will which may even be an unprivileged will. Revoking a privileged will can simply involve physical methods like tearing the sheet, burning etc.
- Unprivileged wills
Any person who does not come under the category of a soldier or airman engaged in warfare, mariner currently at sea, any military medical officer on duty in an expedition and any naval officer at sea can make an unprivileged will.
- An unprivileged will has to be signed or attested in all forms, unlike a privileged will.
- The signature or the attestation (of the witnesses and the testator) of the will should be such that there should be no doubt about the reason of the same.
- This basically means that the signature should be made clearly and should be clearly visible that it gives legitimacy to the will.
- An unprivileged will requires two witnesses.
- Both the witnesses do not need to be in each other’s presence during the process of signing.
Who can write a Will?
Section 59 of the Indian Succession Act, 1925 specifies who all are eligible to write a will. It clearly states that any adult of a sound mind (i.e. not a minor under the Indian Majority Act) can write an executable will.
In the case of Man Kaur v. Gurnam (1984), the Punjab and Haryana High Court said that if a will is said to be properly executed, it is a given presumption that the testator was of sound mind.
Note: The Indian Succession Act, 1925 is not applicable to Muslims as their laws are mostly governed under Muslim Personal Law.
- A married woman is also eligible to write a will if she can isolate the property solely belonging to her and not on anyone on whom she may be dependent i.e. husband or parents.
- Being deaf or dumb or blind does not incapacitate you from writing a will.
- If they know what they are doing, they can write a will.
- Any person under a state of intoxication (voluntary or involuntary), illness or any similar cause cannot make a will.
Basically, anyone who is incapable of understanding what the will is saying, the nature of his or her property etc. are not considered capable of making a will.
Registration of the Will is Not Compulsory So, Why Should You Register?
Registering a will provides definitive legal backing to the will in case of possible disputes which may arise in the future. In case of any dispute about the validity of the will, this is of a great help.
For example, if there are two wills of the same testator (writer of the will), dated for the same day and their validity is being disputed and one is registered so, the will which is registered will have more legal basis than the one which is not.
But simply registering a will is not enough. In the case of “Rani Purnima Devi And Another vs Kumar Khagendra Narayan Dev And Another”, the Supreme Court said, “Registered Will not by itself be sufficient to dispel all suspicion regarding it, where suspicion exists, without submitting the evidence of registration to a close examination”.
Step by Step guide to Registering a Will
- Registration of wills has more flexibility as compared to other documents under the Registration Act. All other documents have to be registered within four months of their date of execution. Wills can be registered anytime.
- The same rule does not apply for wills because of its delicate nature.
- Often for the sake of privacy and even for security measures, a testator may not want to disclose the will to their contemporaries. Hence, there is no fixed time period for its registration.
- The will needs to be registered before the Sub-Registrar or the Registrar of the district court under whose jurisdiction a major part of the property lies.
- In all normal or ordinary cases, the registration process has to be in the offices of the Registrar or the Sub-Registrar. But, in special cases, Section 31 of the Registration Act provides an exception.
- The section states that the “officer may on special cause being shown attend at the residence” for the registration process of the will.
- The cause may be ill health, impending the death and other such situations.
- The Registrar has the responsibility to examine the document carefully and make sure no legal errors are made in the same before signing on the registration.
A common misconception regarding wills is that registered wills have supremacy over unregistered wills even if the unregistered will has been dated on a later date.
- Badari Basamma v. Kandrikeri established that in the case of two wills, the latter one would prevail.
- It also established that it holds true irrespective of the will being registered or not. Hence, the misconception is baseless.
What to Do After the Testator Dies
- Irrespective of the will being registered or unregistered, probate proceedings have to be initiated in the district court or high court of appropriate jurisdiction.
- The court will study the will and make sure that the will has been made by the due process of law.
- The court will let the executor deal with the estate and distribute the same as per the provisions in the will.
- In case the testator has not appointed an executor, the court shall appoint an administrator to do the same.
Revoking of a Will
Section 62 of the Indian Succession Act states that the will can be revoked by the maker at any time he or she is competent enough to do so. Competency here hints at the testator being of sound mind and having attained the age of majority.
Who Can Challenge a Will?
Only a person who has sufficient reasons to challenge the same may do so. Only if the person is affected by the will can he challenge the same. For example, the son of the deceased who feels that he had been wrongfully left out and is not the beneficiary may challenge the will and a friend of the son may not do so.
When Can a Will be Revoked?
- Section 69 of the Indian Succession Act states that marriage of the maker will revoke any will made by him or her.
- If a new will has been made on a later date, it automatically revokes the previous one.
- If the plaintiff can prove that the writer of the will was incapable of making a will at the time it was made. This can happen if the plaintiff proves –
- The maker of the will was of unsound mind or of the age of minority.
- If it can be proved that the will was not signed with the free consent of the testator or the witnesses.
The registration process of the will & the law registration of a will abides by are quiet complex, don’t you think? Drop your views in the comment box & share the article.
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A will is made in Canada , there are two witnesses, the will is Notorized by a lawyer, bears seal of notify public.
At Indian Embassy/Consulate
-Will maker submits a fee
-ID proof is given, (valid passport)
The will is read to the person whose will it is, he confirms that this is his will and that it was made under no pressure, and with a sound mind.
This will is then endorsed by a third witness, vice counsel (a senior officer) at the Indian consulate.
A recent photograph of the person whose will it is is then attached and stamped, after checking Passport for identity purposes.
1) Can the third witness (at Indian mission) be considered a valid witness.
2) Are there any cases that have used this system for probate, verification
Very well written and research piece on the will making process in India. Good work Nikieta.
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