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Shivani Jain

Shivani Jain | Updated: May 15, 2020 | Category: Legal

Procedure for Obtaining Will Registration After Death of Testator

Under the Indian laws, succession and inheritance concerning the deceased property are governed by the provisions of the Indian Succession Act, 1925, except for the case where the person leaves no Will, i.e., he or she dies intestate. Further, if a person leaves a Will for his property, then his estate will be distributed as per his wishes. Furthermore, in India, no law mandates Will Registration. However, a registered Will has more legal value than an unregistered one. In this article, we will be dealing with the procedure of obtaining Will Registration after death of the Testator.

What is a Will?

The term Will has been defined under section 2 (h) of the Indian Succession Act, 1925. According to the definition, a Will is a legal declaration of a person’s intention regarding his property, which he wants to take effect after his death. In layman terms, a Will is basically a legal instrument. By way of a Will, a person disposes of his estate. Further, the same is done in the name of his friends, relatives, or any other person.

Usually, Will comes into effect after the death of the testatrix or testator (person making the will). Even though, in some cases, the transfer of the property takes place during the life of the testator as well. Further, the validity of the Will is proved by the signature of the concerned testator and the attesting witnesses of the said will. However, if there is a Probate of will, then the same increases the credibility and reliability of the will.

Types of Will

According to the India Succession Act, the term Will is bifurcated into two parts, i.e., Privileged Will and Unprivileged Will.

  1. Privileged Wills – These are those Wills that are drafted by the soldiers who are employed in an expedition, mission, or a war-like situation or a mariner or airman. Further, these types of Wills can either be made orally or in writing, as these do not have many legal formalities. 
  2. Unprivileged Wills – The term Unprivileged Wills deals with all other kinds of Wills. Further, the execution of these Wills required a lot of formalities starting from verification of signatures to attestation of witnesses. 

What is the Eligibility Criteria for drafting a Will?

The following listed are the eligibility criteria for drafting a Will –

  1. Testator must be of 18 years;
  2. Testator must have a sound disposing mind or is able to take his own decisions;
  3. Testator has made the Will free from fraud, undue influence or coercion;
  4. Testator must have full knowledge about the contents of the will

Is there any Specific Format prescribed for Drafting a Will?

Although Will is a legal document, However, there is no such prescribed form of it as it can either be handwritten or typed on any paper and not just on the stamp paper. Further, a Will may be either altered or revoked by the owner at any time before his or her death.

Who is the Executor of Will?

The executor of a Will is that person who will outline the entire process of Will Registration and is appointed to make sure that the directions in the Will are carried out according to the testator’s wish. Further, an executor can be any person or individual who is not a beneficiary as per the Will, or any trusted person like a lawyer, family friend, or a chartered accountant.

How to Make a Valid Will?

The following listed are the point that are to be considered while making a Will –

  1. The Will made is required to be signed or affix mark by the testator in the presence of two or more witnesses,
  2. The Will drafted is then required to be attested by two or more witnesses;
  3. The Will is not required to be witnessed by witnesses if in case an executor has been appointed who can now witness the same;
  4. Will can easily be executed on plain paper itself. However, the use of Stamp Paper is entirely optional;
  5. The Attestation or Notarization of the Will by the Notary Public or Oath Commissioner is again optional, and same depends on the will of the testator;
  6. Even though in India, obtaining Registration of Will is optional and depends on to the will of a testator, however, it is always advisable and suggested to get it registered for increasing its legal authenticity;
  7. The Will can be registered at the Sub-Registrar’s office;
  8. Further, obtaining Will Registration after death of the testator is possible as per Section 40 of the Indian Registration Act, 1908;
  9. The revocation or alteration of the Will can be done as per the Indian Succession Act, 1925

Is it Mandatory to obtain Will Registration after Death of Testator?

One can proceed further with an unregistered Will as Indian law does not mandate Will Registration. However, a registered Will has more legal value than an unregistered one. Moreover, one can obtain Will registration after death of the Testator.

Why should one still opt for the Will Registration after Death of Testator?

The following listed are the reasons as to why one should opt Will registration after death –

  1. A registered Will has a higher value in the eyes of the law.
  2. If in case the original Will gets lost or destroyed, a certified copy of the Will shall easily be obtained from the Registry at any time.
  3. If in case the original Will has tampered or any doubt arises, then a certified copy of the Will can easily be obtained from the Registry to compare both of them.

Hence, it is in the best interest to get a will registered.

What are the Advantages of obtaining Will Registration after Death of Testator?

The following listed are the advantages annexed with the concept of obtaining Will Registration after Death of Testator–

  1. Will is not damageable or destroyed or lost or stolen.
  2. Will is kept in safe custody by the Registrar.
  3. No person can access or inspect the Will without express written permission from the testator until his or her death.
  4. If in case a registered Will is uncontested, then it is possible to get leasehold property mutated in the name of the legal heirs, that, too, without obtaining a will.

What is Procedure for obtaining Will Registration After Death of Testator?

As we know, obtaining Will Registration after death of the testator is possible as per Section 40 of the Indian Registration Act, 1908. The following listed are steps involved in the procedure for obtaining Will Registration after Death of Testator –

  1. Obtaining Will Registration after death of the testator is possible only if it is signed by both the parties and is verified by witnesses.
  2. Further, the claiming party is required to produce the original Will before the Sub-Registrar Office, together with the Testator’s Death Certificate. Moreover, the witnesses are also required to be present before the Sub Registrar’s office.
  3. An affidavit is required to be filed by both the attesting witness before Sub-registrar to notify that that the testator had executed his Will in their presence. Further, they are also required to state that the testator was healthy and of sound mind at the time of execution. And lastly, that the testator had executed his Will of his own free consent. 
  4. If in case the officer is contended with the documents submitted and find them accurate then the Will can be registered. However, in the case of the testator’s death, the officer can proceed further with the “Will Enquiry” procedure.

Conclusion

Even though the concept of Will Registration is not mandatory in India, however the same is necessary for increasing its authenticity and value in the eyes of the law. Further, as per section 40 of the Indian Registration Act, 1908, one can easily obtain Will Registration even after the death of the testator. Moreover, there is no specific period prescribed for obtaining Will Registration so that one can apply for the same at any time.

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Shivani Jain

Shivani Jain

Shivani has completed her B com LLB (Hons) and has the experience of writing various research papers during her college time. Earlier she was working as an Associate in a Delhi based Law Firm, but her interest in writing made her pursue Legal Content Writing as a career. Her core area of interest is in writing about various legal enactments, tax and finance.


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