Will – Your heirs might dig graves for this single document

Will

Author’s note

Uncertainties exist every day and no one can predict the future.

Therefore, making a Will not only secures your property but also the future of those who will benefit from it. Although legal documents are hard to tamper with, it is still possible.

In this article, I have highlighted the importance of making and registering a Will. The procedure for the same is also explained in detail.

Table of Contents

  1. What is a Will?
  2. Types of wills
    1. Privileged Wills
    2. Unprivileged Wills
  3. Procedure for registration of a Will
  4. Registration of Will – A full proof plan
  5. Conclusion

What is a Will?

In simple terms, a Will is a legal declaration given by a person in writing regarding the distribution of his/her assets or wealth after his/her death. A specific meaning is given by various Acts, for instance, the Indian Succession Act, 1925 defines will as[1]

“Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

A testator is the owner of the Will. It is essential that the intention of the testator mentioned in the Will takes place only after his death and the manner of disposal of the property must also be mentioned. A Will may be written in any format and can also be revoked by the writer at any time prior to his/her death. If two Wills are made, the latter one will always prevail.[2] Registered one will always prevail.

The Indian Succession Act only applies to Hindus, Jains, Buddhists and Sikhs in case of testamentary succession and not in cases of intestate succession. Muslims follow the Qu’ran and their personal laws for the same while Christians follow this Act for both testamentary and intestate succession.

Types of wills

Privileged Wills

These Wills are written by soldiers or mariners who are fighting battles or are on expeditions and missions if they are above the age of 18 years. They can be made orally or in writing and executed as per section 65 of the Indian Succession Act.

Unprivileged Wills

These Wills include all other Wills except Privileged Wills. The writing of these Wills require attestation of witnesses. The execution of this Will has many more formalities as mentioned under Section 63 of the Indian Succession Act.

Procedure for registration of a Will

Registration of a Will is done at the Sub-registrar’s office under the Indian Registration Act.

There is no time limit for the same. This may be done either before or after the death of the testator by himself or after his death, his legal agent or any person claiming to be an Executor.[3] An Executor is a person who is named by the testator in the Will who carries out his last wishes.[4] Section 41 of the Act further states that a Will is registered in the same manner as any other official document. Under Section 18 of the Act :

  1. The above mentioned people must be accompanied by two witnesses as given in Section 63 of the Indian Succession Act.
  2. When it is given to the registering officer, the Will must be sealed in an envelope and not tampered with. There is no stamp duty charged, however a minimal registration fee has to be paid to the sub-registrar office. You can find the registration fee on the website of the registration and stamp department of your state as the fees vary for different states.
  3. As mentioned in Section 41, if the registering officer is satisfied that the testator is dead and Section 40 is complied with, the will is registered

In special cases such as if the testator is close to dying, the officer may be required to go to the residence of the testator for the registration process as per Section 31 of the Act.

One may also deposit Wills at the office which are kept by the officer in a fireproof box.[5]

  1. It must be handed over in a sealed cover with the name of the testator and his legal agent[6]
  2. The nature of the contents must be superscribed on the cover.[7]
  3. The officer will then register it under Register book No. 5 i.e register of deposits of will and note down the year, month, day and hour and the names of the witnesses.[8]

If a testator wishes to amend or replace a previously made Will, he does so through a Codicil document. It explains the additions or the changes made in the Will. It is deemed to be part of the Will and is executed in the same manner as mentioned above.

Note: A Codicil is a document which amends a previously executed Will. It is an instrument which is related to the Will and explains the alterations and additions.

According to Section 45, on the death of the testator, the person interested in the Will must apply to the Registrar who then opens the seal in the applicant’s presence and copies the contents of the Will in Book No. 3 i.e register of wills and re-deposit the original Will. The Will must be interpreted in a way that shows the intentions of the testator and should not be manipulated.[9]

Registration of Will – A full proof plan

A will can be handwritten or typed, but never in any electronic form.

The First Schedule of the Indian Technology Act, 2000 lays down that documents or transactions to which the act shall not apply and it includes a Will. Therefore, a Will that is signed digitally in an email, text, or otherwise is not recognized.

Here are some important clauses to mention while drafting a will:

  1. The first clause should mention personal details of the testator and the beneficiary for instance name, age, and address. The will must also define the relationship of the beneficiary.
  2. The second clause should provide for the details of the property. Kind of property whether its moveable or immoveable, description of that property, registration number, date of registration etc.
  3. The third clause should be as clear and unambiguous as possible. This is because the clause defines and clearly draws the lines as to how many shares of property is to be given to each beneficiary.
  4. In case, the beneficiary is a minor, the will must appoint a guardian and mention the personal details of the guardian. Guardian takes care of the property for the beneficiary till minor attains the majority.
  5. The will must be dated and signed by the testator after the last sentence of the document.

Conclusion

A Will is necessary to ensure that your family is taken care of in case something were to happen to you.

Even though it is optional, it is advisable to register your will.

The process of registration may seem complicated and hence has been simplified above.

  1. Indian Succession Act, 1925, Sec. 2(h).
  2. Badari Basamma v. Kandrikeri AIR 1984 NOC 237 (Kant).
  3. Indian Registration Act, 1908, Sec. 40(1).
  4. Indian Succession Act, 1925, Sec. 2(c).
  5. Indian Registration Act, 1908, Sec. 43(2).
  6. Indian Registration Act, 1908,Sec. 43(1).
  7. id.
  8. id.
  9. Rajrani Sehgal v. Dr. Parshottam Lal, 46 (1992) DLT 263.

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