After the Coronavirus outbreak last year one thing that people got clear idea about was how uncertain future could be. People knew that death is inevitable but they didn’t expect that things could go from bad to worse in just few days. Therefore, in these critical times people realised that most sensible thing to do as regard their properties and wealth was to make will. Earlier people used to think making a will is something that is to be done at the end of the life. However, in these uncertain times, people are now wanting to make their Will and decide how their properties and possession be distributed after his/her death.
A Will is a legal document that spells out your wishes regarding the care of your children, as well as the distribution of your assets after your death. It is a written document that speaks for you after you die.
Earlier Succession in India was governed by Indian Succession Act 1865 which was mainly based on English Law and subject to certain exceptions. So, in 1870, Wills Act was passed. It provided that certain sections of the Indian Succession act would apply to all wills and codicils made by Hindus also. Likewise, the Parsi Intestate Succession Act 1865, made provisions for succession in cases of Parsis who died without making will. At present, Wills in India are governed by Indian Succession Act, 1925.It is a consolidated act applicable to all intestate and testamentary succession.
A will is defined by sec 2(h) of the act, as the legal declaration of the intention of a testator with respect to his property, which (intention) desires to be carried into effect after his death.
A will gives clear picture as regards to distribution of one’s bank balances, property or prized possessions. Through will one can also give away his assets to charity (or charities) of one’s choice.
Who can make a Will?
A will can only be made when a person is alive. He can be any person who is of sound mind and who is not minor can dispose of his property by will. A will is legal declaration and needs certain formalities to be complied with like signatures and attestation of will.
Broadly, The Indian Succession Act provides two types of wills:
- Privileged Will
- Unprivileged will
Privileged will is given by sec 65 of the act which states that A privileged will can be made by any person who has completed 18years of age and is a soldier or airman employed in an expedition or engaged in actual warfare or a mariner at the sea. All the other wills are called as Unprivileged Wills.
It is important to note that a will becomes enforceable only after the death of the will maker (Testator) so as long as the testator is alive the will cannot be enforced. Often, wills are made through lawyers/close friends on whom the testators have confidence and are kept as a secret from the family members /beneficiaries so that the testator does not have to experience their animosity during his lifetime. There have been instances where the testators have bequeathed their properties to someone who have been close to them and taking care of them during their illness and not being their sons and daughters or any other family members.
One such famous case being Priyamvada Birla’s Will, widow of Birla Corporation promoter Madhav Prasad (grand uncle to Kumar Mangalam Birla of the Aditya Birla Group, probably the best-known Birla today). To the utter disbelief of the Birla family, it turned out that she had bequeathed some of her estate, believed to be around Rs 5,000 crore, to well-known Kolkata-based chartered accountant, Rajendra Singh Lodha in July 2004. Lodha also happened to be the sole executor of the will, allegedly written in 1999.Hence, Lodha being outsider, the will was challenged in the court.
Thus, this secrecy around the will creates controversies and suspicion about the validity or genuineness of the will. In such a situation, a registered will only makes the things better as it holds greater legal and evidentiary value.
The Indian Succession Act, 1925 do not contain any provisions regarding the Registration of Wills. It is the Sec 17 of Registration Act 1908, which states that all instruments involving immovable properties having value more than Rs 100/- needs to be compulsorily registered. However, Registration of will is not compulsory although it may involve immovable property. This is given by sec 18 of the same act which expressly gives the list of documents registration of which is optional. Thus, Registration of will according to sec 18 is purely optional and is not a mandatory requirement.
But it is always advisable to get the Will registered because of the various advantages it provides:
A registered will has more legal sanctity than a registered one.
In case if the original will be lost, one can always obtain a certified copy from the registrar.
The Registration Act 1908 also has provision regarding deposit of Wills with the Registrar. According to Sec 42 of the said act if the testator wishes to deposit his will with the registrar he can do so personally or through his agent. He has to deposit his will in a sealed cover super scribed with the name of the testator and that of his agent (if any) along with a statement of the nature of the document. Thus, if will is deposited with the registrar so it cannot be tampered, destroyed, lost or stolen.
Further it also safeguards the destruction of Will due to man-made or natural causes as certified copy in digital form is saved with Registrar, when registered.
A registered will not only ensures smooth transmission of properties but also reduces disputes between heirs and interested persons with respect to tampering of Will due to any ulterior motives.
Lastly, it ensures that succession has taken place as per wishes of the Will Maker.
Registration of Will after the Death of the testator.
A will can be registered by the beneficiary even after the death of the testator. If all the requirements of will such as signatures, verification by witnesses is done. Then all that the beneficiary has to do is produce original copy of will, proof of the death of the successor and the witnesses before the sub registrar. If the Sub registrar is satisfied with the documents and finds that the will is accurate, then he can get the will registered. However, one must note that registration of the will is not mandatory as per the law so one need not really register the will after the death of the testator and can simply go ahead for the grant of administration of the will.
Consequences of Non-Registration of Will
Interestingly, Non- registration of will does not infer that the will is not authentic or genuine. Neither does it affect the validity of the will. Since, it is not mandatory to register a will as seen above. It is completely the choice of the will maker if he wants to get his will registered or not. One advantage of non-registration could be that revocation of non-registered will is less cumbersome as compared to registered will as it requires registration of will again incase of any changes or alterations are made to the will.
Thus, it can be reiterated that registration of will is not compulsory. Non- registration of will does not make it either genuine or fake. One can always challenge the will in the court of law whether it is registered or unregistered. The court can always accept the objections against the registered will. In case where the testator has died the beneficiary can still get the will registered. Nevertheless, it can’t be denied that a will that is unregistered will always holds the doubt of truthfulness of its content.