A will is primarily a legal declaration which any individual makes regarding the manner in which they would like for their property to be managed and distributed after their demise. Even though a will is a legal document, there is no prescribed form in which it is required to be made. For example, there is no need to make a will on a stamp paper or other such legal requisites and it is not mandatory for a will to be typed, since a handwritten will is also equally legal and valid in the eyes of the law. Having made that point, as far as preference is concerned for validity purposes, a handwritten will is more coveted as opposed to a typed will since it is more difficult to refute a handwritten will. As per the Indian Succession Act of 1925, any individual who is of sound mind and who is not a minor is authorised to make a valid will. For further reference, the following points must be kept in mind to ensure that the will or the probate of a will is valid:
- All wills are required to clearly bear the name of the testator and the complete details pertaining to the assets and property they possess. Further, the manner in which these assets and properties are to be distributed or disposed off, after the demise of the testator must also be mentioned in detail.
- The testator is required to mandatorily appoint an executor of the will or even any beneficiary or legatee for the purposes of executing the will, after the death of the testator, as per the laws governing the execution of a will under the Indian law. Furthermore, a copy of this will must be provided to all the surviving heirs of the testator as well.
- It is important to note here that any will made beforehand by any testator can easily be revoked during the lifetime of the said testator and further, it is also possible for the testator to make more than one will during his or her lifetime. This is especially important under instances wherein the properties prescribed under the will get disposed off during the lifetime of the testator itself or in cases wherein the beneficiary predeceases the testator. However, at other instances, it could be that the will simply needed certain minor alterations and in this case a codicil can be resorted to. A codicil acts like an addendum to the original will and by making the same, the testator can make changes simply in the specific required areas within the will without changing the rest of the information.
- All wills are required to comprise of two independent witnesses, who are in no way beneficiaries under the same will. This is so because, if a beneficiary becomes a witness, the will stands void for lack of accountability and fear of prejudice. However, if a will has two independent witnesses and if it was not registered, even then the will stands valid under the eyes of the law.
Unregistered Wills and their legality
- Under the provisions of Section 18 of the Indian Registration Act, there is no stipulation which mandates that a will is required to be registered and hence there exists no debate over the actual validity of an unregistered will since the same is valid whether regardless, as long as it resonates with all the points regarding the validity of a will, as mentioned above. However, for the purposes of not leaving the contents of the will up for challenge, it is always advisable to register all wills since it is the proof and confirmation of the fact that the will is the last remaining will of the deceased. Furthermore, one need not pay any stamp duty over the registration of a will. Furthermore, any will, which has been registered under the sub-registrar cannot be easily tampered with, wrecked, disfigured or stolen as the same is in the custody of the Sub-Registrar.
- There are benefits attached to registering a will such as, the fact that a will has been registered, it takes off the burden of proof regarding the validity of the contents of the will. However, even if two witnesses are present and sign the same will, it is proof enough of its validity, thereby making registration optional under section 63 of the Indian Succession Act which is applicable over all unregistered wills.
- Further, under section 23 read with section 27 of the Indian Registration Act, there exists an exemption for the registration of a will, even after the mandatory four month period under the Indian Registration Act. This means, that there exists a provision for the registration of a will even after its execution and without any prescribed time limit.
- However, in case of an unregistered will, we can still exercise the option of registering it at a later date even after the death of the testator. For this purpose in itself, the witnesses of the will, the death certificate and the will it itself can be produced before the registrar, who, upon their satisfaction over the genuineness of the will, can register the same . Under instances wherein we do not want the will to be registered, the executor or in the absence of the executor, the legal heir can move the court for the purposes of obtaining the letters of administration.
- It is important to note that such a petition shall be mandatorily required to be filed in the concerned District Court or the High Court. Moreover, there is no limitation for approaching the Court in order to obtain a probate for the will. However , if such a petition is filed three years post the demise of the testator, the executor will be duly asked to provide an explanation for such a delay.
- The only manner in which one can prove an unregistered will under section 63 of the Indian Succession Act, is to call at least one attesting witness out of the two witnesses for proving the execution and validity of such a will. Such an attesting witness must be alive and, in a position to depose whereby he or she states that he witnessed the testator signing the will of his own free accord and such an individual must not, in any way, be a beneficiary under the will.
- However, it is again important to reiterate that a will, whether registered or unregistered can be challenged easily and after this it must go through the entire trial process by getting converted into a suit, if the objection is accepted by the Court. Moreover, a registered will is always easily accepted by courts since there exists no chance of the will being inauthentic. However, an unregistered will always places a doubt over the genuineness of its contents.
Circular released by the Delhi Government
- There exist certain legal instruments specified under the Registration Act, 1908, which mandatorily require compulsory registration with competent authorities. Registering the instruments which require compulsory registration as per this Act qualifies them as being valid instruments which are admissible as evidence under any court. Since wills do not require compulsory registration under the Registration Act, 1908, even an unregistered will which has been properly executed, constitutes as a valid instrument in the eyes of law.
- Recently, the Government of Delhi released a circular wherein the state officials have been directed to ensure that a beneficiary under an unregistered shall now mandatorily be required to obtain and submit a succession certificate/probate order to the MCD, in order to get the property mutated under his name as well as for updating the property records.
- However, any beneficiary who furnishes a registered will is not required to additionally provide a succession certificate or probate order.
- Thus, as per this circular, in case the will is unregistered, under such circumstances, there will be a requirement to file an application under Section 276(1) of Indian Succession Act 1925 for seeking probate orders.
- It is important to note that the above provisions are applicable only within the territory and jurisdiction of Delhi.
Transfer of property under an unregistered WILL:
- Under a situation wherein the property to be transferred under a will has to be done in the instance of an unregistered will, the executor of the same will have to acquire a probate of the will, since it has been made mandatory by several states in India in cases involving the transfer of property.
- Thus, if such a will has not been registered, the claimant is mandatorily required to acquire the succession certificate from the court and this is always required for moveable properties like bank account balances, shares, securities etc. Legally, a probate is usually issued under the seal and signature of a Court officer and thus, is a document which endorses the fact that a particular will had been proven.
- A petition for any probate or letters of administration of the Will of a testator must be filed within three years from the date of death of the testator in order to avoid any unnecessary delays. However, no probate is necessary for Christian and Muslim Wills.
- Furthermore, the role of the executor is crucial in realizing the estate of the deceased and paying off his debts. He or she has to properly distribute the inheritances, as detailed under such a will and courts generally grant a probate to the Executor mentioned in the will. However, it is important to know that Ancestral property cannot be transferred under a will, whether registered or unregistered, unless it is partitioned, as per the law.
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