Will Registration in India – Vakilsearch

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During his lifetime, a person may make a Will Registration that disposes of his property at his death but is inherently ambulatory and revocable. So it is the complete statement or last Will of what a person intended to be done after death, in terms of the disposition of his property.

It is impossible to specify a form of a Will Registration in the absence of a statute, so it may be orally delivered or written. It is true that old oral wills left by Hindus before the Indian Succession Act became applicable to them were accepted as valid. There is also the possibility of an Oral Will if in writing, but this does not have to be formally signed or attested.

However, your Will cannot operate as intended unless it is complete and operative. If a document is created in an attempt to clarify succession after death or if it is drafted with an intention to regulate succession after death, it cannot be classified as a will. 

Absent statutory requirements, writing instruments have been taken to operate as Wills in whatever form they might have taken. If other characteristics of a Will are present, petitions addressed to officials, deeds, adoptions, and declarations in deposit applications are regarded as Wills.

Will registration in India

A registration act of 1908 ensures the registration of documents in India. Documents that require registration are listed in Section 18 of the Registration Act. Wills are therefore covered by clause (e) of Section 18.

Registration Wills are not mandatory and depend on the testator’s preference. Registration is always recommended regardless. The advantages of Registration of Will include:

  • There are several arguments against a registered Will, which is that it is a strong legal proof against challenges regarding the soundness of the mind of the testator to make a Will (whether they are ill, under the influence of alcohol or medicine, etc.). The fact that there is very little likelihood that a person suffering from mental incapacity will be able to first draft an estate plan and then go through all that trouble of registering an estate plan is not surprising.
  • Registration makes it difficult to forge a will or forge the signature of the testator. The creation of a will may also be challenged under other circumstances, such as under undue influence or fraud.
  • Registration also gives the Will protection through the office of the Registrar. Testators and their agents may withdraw Wills from the Registrar during their lifetime.
  • In the event of a lawsuit filed by a natural heir who is denied in a Will, its authenticity can be proved only by a registered Will.
  • In addition, registration is advised if one or more beneficiaries are dissatisfied with the will and they intend to challenge it on this basis.

In India, how is a will registered?

  1. A Will must be registered by the sub-registrar in the city or county of the testator’s residence or where the majority of the estate is located. An original Will should be presented with the testator in front of a government official to ensure its validity and trustworthiness.
  2. Due to its delicate nature, a will can be registered anytime, and the testator might not want their contemporaries to know about it for security or privacy purposes. A will does not need to be registered within a fixed period, unlike other documents which need to be registered within four months of their execution.
  3. Before registering a document, the Registrar must check it carefully for omissions of legal terms.
  4. During the scrutiny of the Will, the registration date is assigned by the Sub-Registrar.
  5. Each state has its own registration fees.
  6. At least two witnesses must accompany the testator to the Sub registrar’s office.
  7. Upon finishing the process, the Registered Will may be collected after 1 week.

Keeping the Will safe

It is very important to be sure that after you have registered your will, it will be kept in a safe place in a way so that the chosen beneficiaries can easily find it after the testator has passed on. For the safekeeping of Wills, some countries have the services of a national depository that provides the service as well as in some other countries, there are private institutions that provide this service. In India, there aren’t any facilities that can be used to store the wills of the testators; so, it is the responsibility of the testator to ensure the safe custody of their wills.

There must also be as many copies of the Will as the number of beneficiaries so that the testator can pass the copies on to each of the beneficiaries in order to facilitate the distribution of the Will. In such a case, it may be necessary to mention in the Will that the document is an original along with three copies. There is no difference between them other than that they are both originals. A copy of the will be handed over to each beneficiary as soon as it is signed, stated the executor.

 

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