A will is a legal document in which a person disposes of his property after his death and is, by definition, ambulatory and revocable during his life. As a result, it is the complete declaration of a man’s mind or last Will and Testament of what he would have thought to be done after his death, in terms of property disposition.
Will registration is not required under Indian law, but a registered Will indicates that the registrar has verified the writer of the Will and the witnesses.
In the absence of a statute, a Will may take any form, either oral or written. Oral Wills by Hindus were recognised as valid prior to the Indian Succession Act becoming applicable to Hindus. An implied oral will could also exist; if in writing, it does not need to be signed or attested.
However, in order to function as Will, the writing must be complete and functional. A document can only be called a will if it is executed with the intent of regulating succession after death. A nomination cannot be considered a will.
In the absence of statutory requirements, writing instruments have been held to function as Wills, in whatever form or name they may have taken. Petitions addressed to officials, deeds or adoption, declarations in deposit applications, or recitals in a letter have been held to operate as Wills if they contain the other characteristics of a Will.
Will Registration in India
The Registration Act, 1908 governs document registration in India. Section 18 of the Registration Act includes a list of documents that do not require registration. Wills are thus covered by clause (e) of said section 18.
Will registration is optional and is determined by the testator’s wishes. However, it is always a good idea to have the Will registered. The following are the benefits of having a Will registered:
- A registered Will provides strong legal evidence against challenges to the testator’s mental capacity to make a Will (whether due to illness or due to influence of alcohol or medication, etc.). It is assumed that a person in a state of mental incapacity will have little chance of drafting a Will and then going through the ordeal of registering it.
- Registration eliminates the possibility that the Will was forged or that the testator’s signature was forged. Other challenges to a Will, such as being signed under duress, fraud, and so on, remain certain.
- Another advantage of registering a will is that it is protected at the Registrar’s office. During the testator’s lifetime, he or his agent may withdraw the Will from the Registrar.
- If a Will is challenged by a natural heir who is denied in the Will, only a registered Will can prove its authenticity.
- Registration is also recommended if one or more beneficiaries are likely to be dissatisfied with the Will and have challenged it on this basis.
How a will is registered in India?
- To register a Will, the testator must first go to the office of the sub-registrar of the area in which he or she resides or where the majority of the estate is located. The testator’s personal appearance before a government official with the original Will adds to the Will’s trustworthiness and reliability.
- Because of the delicate nature of the Will, it can be registered at any time. A testator may not want to disclose the Will to their contemporaries for privacy or security reasons. As a result, unlike other documents, which must be registered within four months of execution, there is no set time for registering a will.
- Before registering a document, the Registrar must carefully examine it to ensure there are no legal errors.
- Following the examination of the Will, a date for registration is set in the Sub-office. Registrar’s
- A Nominal Government registration fee is paid, which varies by state.
- The testator should ensure that he goes to the Sub-office Registrar’s with at least two attesting witnesses.
- After the procedure is completed, the Registered copy of the Will can be picked up after one week.
The Fundamentals of Making a Will
Section 59 of the Indian Succession Act addresses a person’s ability and requirement to make a Will. It says in this regard:
- The person making the will must have testamentary capacity, which means that a person who is not a minor may dispose of his property by Will, and a person who is not deaf, blind, or dumb must be able to comprehend the nature of the testamentary disposition.
- The person making the will must be of sound disposition, that is, free of mental imbecility, idiocy, mental weakness, delusion, acute sickness, serious bodily infirmity, and so on.
- The person making the will should be fully aware of and approve of the contents of the Will.
- The act of making a will should be voluntary, and the person making the will should be free of undue influence, fraud, coercion, importunity, and so on.
Procedural Requirements under Indian Law
To determine the procedural requirements of a Will under The Indian Succession Act of 1925, it is necessary to distinguish between a privileged and unprivileged Will.
Privileged Wills
Only the following people can make a privileged will: (a) a soldier/airman on an expedition or engaged in actual warfare; and (b) a mariner at sea. The following are the rules for making privileged wills:
- The will must be written in the testator’s handwriting, and does not require testation in this case.
- If it was written by someone else, it must be signed by the testator even if it is not attested.
- If the will is written by someone other than the testator, it must be proven that it was written in accordance with the testator’s instructions if it is not signed by him.
- If armed personnel write down instructions that cannot be registered as a will, those instructions may be considered his legal will.
- When the testator makes a privileged will, an oral will becomes null and void after one month.
Unprivileged Wills
Except for soldiers engaged in combat, everyone has the right to make an unprivileged Will. The following are the procedural requirements for an unprivileged Will:
- Unprivileged wills must be written down.
- The testator must sign it, or the testator may direct someone else to sign it in his or her presence.
- The will should be attested by two or more witnesses known as attesting witnesses who can provide evidence of the testator making a sign in their presence.
- There is no need for a one-of-a-kind form of attestation.
Frequently Asked Questions (FAQs)
- What is a Will?
A Will is a legal declaration made by a person of his or her intention and desire regarding how his or her assets will be dealt with or disposed of after the person’s death.
- What are the essential qualities of a Will?
– Legal Declaration
– Property Disposition
– Death of the Testator
– Revocability
- Who has the authority to make a will?
Every adult who is not a minor and is free of fraud, coercion, or undue influence.
- Is it necessary to have a lawyer draft a will?
No, as long as your asset ownership and distribution is simple, you can draft your own Will. Consider hiring a lawyer if:
– your family situation is complicated – perhaps you have children from a previous relationship, or you want to make special arrangements for children or a family member with a disability
– you have assets overseas, such as a vacation home
– you run a business and expect it to form part of your estate
These situations may necessitate legal advice to ensure the Will drafted is in accordance with your wishes
- Is it necessary to register a will in order for it to be valid?
No, will registration is not required. A valid Will is one that is signed by you in the presence of at least two witnesses, who must also sign as witnesses.
