What is Will and it’s Consequences

Will is a document through which the testator describes his intention for the distribution of his/her immovable or movable properties belonging to his/her after death.

What is requirement for Valid Will

• The testator must be sane person.
• He must be absolute owner of properties mentioned in Will.
• The Will must be signed by the two witnesses.

Guide to Will Registration

Registration of Will is not a mandatory requirement, it is purely optional. The validity or genuineness of a Will cannot be raised only based on its non-registration. Hence, Will registration is only done in select circumstances. In this article, we look at the advantages, disadvantages and procedure for Will registration.

Procedure for Will Registration

Will can be registered at the Office of the Sub-Registrar, established by the State governments under the Registration Act, 1908. There is stamp duty is chargeable on Will registration. The stamp duty may vary from one State to another State. After drafting of the Will, a witnesses should accompany the testator to the Registrar for registration of the Will. After executing the Will, the registered Will can be deposited in safe custody with a banker or lawyer. Registrars also has authority to receive and hold  in deposit wills. To deposit a Will with the Registrar, it must be done in a sealed cover by the testator or by a person duly authorised by the testator. On satisfying the identity of the testator or the person authorised by the testator, the Registrar would hold the cover containing the will.

In case a testator wishes to change or withdraw a Will from the Registrar, then he or she can apply personally or through a duly authorised agent. If the Registrar is satisfied, the Will would be delivered. In case of death of the testator, any person could apply to the Registrar for opening of the cover containing the Will of the deceased. If the Registrar is satisfied that the testator is dead, the Registrar would open the cover in the presence of the applicant and provide a copy to the applicant. However, the original Will would be in the custody of the Registrar until a competent court order for producing the Will before it.

Kindly note: A will is

• not effective until the death of the testator,
• can be amended by duly executed alterations or by attaching a supplementary document (called codicil), and
• can be revoked at any time by the testator (a) by its destruction, or (b) by making another will that revokes the earlier will or is inconsistent with it provisions. Because the law generally presumes the testator would want a different manner of distribution of estate upon his or her marriage, remarriage, or divorce, a will is usually automatically revoked upon such occurrence except where the testator intended it (at the time of making the will) to survive such acts. A testator may make different wills that relate to different assets, but any provision relating to a particular asset will be invalidated by an inconsistent provision in a later will.

Advantages and Disadvantages of Will Registration

The following are advantages of having a registered will:

• Will cannot easily be tampered or destroyed or mutilated or lost or stolen.
• Will is kept in safe custody by the Registrar.
• No person can access or examine the Will without the express permission in writing of the testator until his/her death.
• If a registered Will is uncontested, it may be possible to get the leasehold property mutated in the name of the legal heirs without obtaining a probate of the Will.

The following are disadvantages of having a registered will:

• Revocation of a registered Will is a cumbersome process when compared to the revocation of an unregistered Will.
• If a registered Will is revoked, then any subsequent Will made by the person should also be a registered Will.

The beneficiary of the Will have to prove its genuineness by way of filing of probate of Will under Indian Succession Act.  It has to filed before in District Court.