EFFECTS OF REGISTRATION AND NON-REGISTRATION OF A WILL

BY: VISHWA KL - III B.Com. LL. B(Hons) - ‘C’ Section

REGISTER NO - HB21154

INTRODUCTION:

First of all, we should know what is a will, who can make a will and what are the different types
of will under Indian law. A will is a formal declaration indicating a person's intention to transfer
their property to another individual, whether or not they are a legal heir. This legal document
becomes effective upon the individual's death. It is subject to alteration or revocation while the
individual is competent to manage their property affairs. Understanding the legal implications of
drafting a will is also crucial. A will serves as a legal document delineating the distribution of
your assets posthumously. It plays a vital role in estate planning, ensuring the well-being of your
loved ones. Despite its significance, many individuals lack awareness regarding the various types
of wills in India and the corresponding legal intricacies. In the context of India, the Indian
Succession Act of 1925 governs wills made by Hindus, Buddhists, Sikhs, or Jains. It's important
to note that Muslims are not bound by this act, and the disposal of their properties is exclusively
guided by Muslim Law.

In legal terms, there are distinct types of wills:

Privileged Wills: Created by soldiers, airmen in active duty, or mariners at sea, privileged wills
don't require two witnesses' signatures or registration.
Unprivileged Wills: Crafted by individuals not in active duty, unprivileged wills need two
witnesses' signatures and must be registered.
Conditional Wills: Established under specific conditions, these wills cater to future events.
Careful consideration of conditions and their feasibility is vital.

The essential elements of an Indian will, dictated by the Indian Succession Act, 1925, include:
Sound Mind and Age: Every will writer must be of sound mind and above 18 years, excluding
unsound minds and minors from creating a will.
Capacity for Judgment: Individuals unable to make a valid judgment due to intoxication,
illness, or any condition preventing understanding of consequences cannot draw a valid will.
Free Consent: Any part of a will made under force, coercion, threat, or without free consent is
deemed invalid and unenforceable by law.

WHY REGISTERING A WILL IS IMPORTANT?

In India, making a will is important for saying how you want your things shared after you pass
away. Even though creating a will might seem a bit challenging, it's crucial to understand the
legal steps involved, especially the part about registering it. The Indian Succession Act of 1925
is the main law that guides how wills work in India. It explains the rules for making, signing, and
registering wills. Section 63 of this law says that either the person making the will (we call them
the testator) or someone legally allowed can start the registration process.

This law also talks about how assets should be shared after someone dies. It lets any person who
is mentally sound and 18 or older make a will, including married women and those facing
pressure from others. Creating a will is not just about writing it down; it needs to be registered to
be legally valid and enforceable. Registering a will is crucial because it helps avoid possible
legal problems that could come up later. Following the Indian Succession Act, Section 17 of the
Registration Act of 1908 says that all wills made in places governed by this law must be formally
registered for legal validity. This registration process serves two purposes: proving the document
is real and making sure the beneficiaries are protected.

The steps for registering a will, as outlined in the Registration Act of 1908, involve the person
making the will and two witnesses giving a statement to the Registrar. After this, the Registrar
checks their identities, and once everything is verified, the will gets officially registered, making
it legally authentic.
PRECEDENTS RELATING TO THE SIGNIFICANCE OF WILL
REGISTRATION:

In Indian jurisprudence, legal precedents highlight the importance of registering wills. Here are
some notable case law examples:
J R Subramania Iyer Vs M N Krishnamurti (2014): The court emphasized that in conflicting
claims, a registered will takes precedence over an unregistered one. Will registration be
underscored for a smooth asset transfer process and to prevent legal disputes.
Daryao Singh Vs Roop Rani1 (2006): The court stressed that a registered will is the most
compelling evidence of the testator's intentions, serving as conclusive proof of their intent to
execute the will as stated.
Ramanbhai Naranbhai Patel Vs Ramanbhai Amarsibhai Patel (1971): This case established
that will registration creates a presumption of authenticity. A registered will is presumed to be
the testator's will, placing the burden on the opposing party to prove it was executed under duress
or fraudulent circumstances.
Rameshwar v. Shambehari: While not mandatory, the court suggested that will registration is
highly advisable to substantiate the document's genuineness and authenticity.
Jaydev Manilal Patel v. Patel Ramanbhai Mathurbhai: The court held that an unregistered will
may be used as evidence but its authenticity must be firmly established.
Kalyan Kumar Gogoi v. Ashutosh Agnihotri2: Emphasizing the paramount importance of will
registration, the court ruled that an unregistered will is inadmissible as evidence.
Mohandas v. Mohandas: The court held that will registration is necessary when executed by a
testator not in a fit state of mind.
Periyaswami Gounder v. Mayandi Gounder: Decreed that a will lacking registration cannot be
granted probate, and the authenticity of an unregistered will is subjected to heightened scrutiny.
Saraswathi Ammal v. Rajeswari: The court asserted that a registered will carries greater
evidentiary weight than an unregistered one, with registration serving as substantial proof of its
genuineness.

1 AIR 1961 SC 1457

2 www.casemine.com
WILL REGISTRATION:

To register your Will in India, follow these steps3:

Visit the Local Sub-Registrar's Office: Head to the sub-registrar's office in the jurisdiction
where you live.
Submit Original Will and Necessary Documents: Provide the original Will along with the
required documents. The registration charges need to be paid, typically a nominal fee.

Documents Needed:

● Two passport-size photographs of the Testator. In some places, photos and thumb
imprints are electronically captured.
● A medical certificate from an MBBS/MD doctor, confirming the testator's sound
mind and decision-making capability.
● The original Will signed by the Testator.
● Two attesting witnesses, who should be present to sign. They must also carry
photo proof.
● ID proof of the Testator and the two witnesses.
● Address proof of the Testator.
● PAN card of the Testator and the two witnesses.

Witnesses' Presence: Two attesting witnesses must accompany you to the sub-registrar's office
and sign the documents.
Receive Registration Certificate: After successful registration, you'll be issued a registration
certificate by the sub-registrar. Keep this certificate secure, and consider sharing copies with
your family and appointed executor for future reference.

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NON-REGISTRATION OF WILL:

The Registration Act, 1908, holds significant importance in India as it governs the registration of
documents, ensuring transparency, authenticity, and the preservation of evidence. Section 49 of
this act specifically addresses the consequences of not registering documents that are required to
be registered.

Consequences of non-registration4:

- Immovable Property:
A non-registered document will not impact the immovable property mentioned in it.
Rights or claims arising from the document regarding the property will not be legally
enforceable.
- Power to Adopt:
If a document conferring the power to adopt is not registered, legally, such power will not be
recognized.
- Evidentiary Value:
A non-registered document cannot be used as evidence in a court of law for any transaction
affecting the mentioned property or conferring the power of adoption.

Rationale Behind Section 49:

The main objective of this provision is to ensure transparency and recording of significant
transactions, especially those related to immovable property. This not only protects the interests
of the involved parties but also facilitates dispute resolution by providing clear evidence of
transactions.
Section 49 also acknowledges the Transfer of Property Act, 1882, showcasing the
interconnection of property laws in India. Certain provisions in the Transfer of Property Act
mandate document registration, and non-compliance leads to the consequences outlined in
Section 49 of the Registration Act.

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In practical situations, property disputes often arise due to the non-registration of documents.
Failure to register a crucial document can lead to complex legal battles, making it ineffective in
the eyes of the law.

Section 49 serves as a stern reminder of the importance of registering vital documents. It

underscores the legal principle that, for certain transactions to gain legal validity, they must be
properly recorded and registered. This provision plays a crucial role in maintaining the integrity
of property transactions in India.

IS REGISTERING A WILL MANDATORY BY LAW:

Contrary to popular belief, registering a will is not mandatory under Indian law (Section 18 (e) of
the Registration Act, 1908) to make it legally valid. However, registration provides an additional
layer of security by preserving a genuine copy in case the original document is lost, damaged, or
tampered with. Registering the will offers several advantages, providing clarity, security, and
peace of mind for both the testator and beneficiaries.

VALIDITY OF UNREGISTERED WILL:

When a will remains unregistered in India, it does not lose its validity. The legal implications and
validity of an unregistered will are essential aspects to understand. Even though it is possible to
register a will after the death of the testator by the claimants, registration is not mandatory in
India.

A last will is a legal declaration of the testator's intentions regarding the property they own or
have rights over. It outlines how the property should be divided after the testator's death, known
as testamentary succession.

Importantly, it is not compulsory to register a will in India, as indicated by the list of documents
mentioned under Section 18 of the Indian Registration Act, 1908. Therefore, an unregistered will
is considered valid in India. The choice of whether to register a will or not ultimately depends on
the preferences and decisions of the testator.
An unregistered will is valid if it conforms to the legal requirement of two witnesses who have
signed the will in the presence of the testator and the testator has signed the will in their
presence.

An unregistered will is valid if it conforms to the legal requirement of two witnesses who have
signed the will in the presence of the testator and the testator has signed the will in their
presence.

ADVANTAGES OF REGISTERING YOUR WILL:

- Authenticity:
Registering your will with the local sub-registrar ensures its authenticity, eliminating doubts
regarding coercion. Sub-registrars' involvement establishes an official record of the will's
existence, date, and your identity as the testator.
- Protection Against Loss or Tampering:
Registering safeguards, the will from loss, theft, misplacement, destruction, or tampering.
The registered copy becomes an official record, providing an extra layer of protection.
- Enhanced Credibility:
Registered wills enjoy enhanced credibility and acceptance by financial institutions, government
authorities, and other relevant parties. When beneficiaries present a registered will for asset
distribution or legal transactions, it carries more weight and is more readily accepted.
- Confidentiality & Privacy, along with a Back-Up:
Registering your will does not automatically make it a public document, ensuring confidentiality
and privacy. Only beneficiaries, and authorized legal representatives can access the will. Upon
your demise, the executor or beneficiaries can request a copy from the sub-registrar's office,
following due verification and payment, in case the original is lost or destroyed.

In summary, while not mandatory, registering a will provides practical advantages, ensuring its
authenticity, protection against loss or tampering, enhanced credibility, and confidentiality for
the testator and beneficiaries.
EXECUTION OF AN UNREGISTERED WILL:

Provisions of Section 63 of the Indian Succession Act, 1925 define the process of execution of
an unregistered Will. In every Will, the relevant testator must sign or affix their mark, or it must
be signed in their presence and at their instruction by another person. The testator's signature,
mark or the signature of the person signing on their behalf must appear to deem the Will
effective. The Will must be duly signed by two or more witnesses. Each witness must observe
the testator's sign or mark. Every witness must sign in the presence of the testator or after
receiving a personal acknowledgement from them. There is no specific type of attestation
needed. The presence of at least two witnesses must attest to the Will's execution in order for it
to be valid. Only following the demise of the testator or testatrix, Will execution by the executant
must be proven in the probate procedure before the court of law.

Validity under the Indian registration act,1908

Resolutions for all kinds of disagreements related to the legality of an unregistered Will has been
mentioned in Section 28 of the Indian Registration Act, 1908. If the Will fulfills all the aspects
mentioned above, it is not mandatory for it to be registered.

There is no time limit to get a Will registered as the same has been exempted under Section 23,
read with Section 27, of the Indian Registration Act. The provisions stated thereunder
specifically refer to the topic of registering Wills after they have been executed and without any
time limit.

Additionally, if the Will is in the sub-registrar's custody, it cannot be easily tampered, destroyed,
disfigured, or stolen. Furthermore, there is no stamp duty required for the registration of a Will.

Indian succession act of 1925: validity

As per the provisions of Section 63 of the Indian Succession Act, calling at least one of the
attesting witnesses is the only way to demonstrate an unregistered Will’s execution and validity.
The witnesses signing the Will must not be one of its beneficiaries and should be present when
the testator signs the draft. The witness must also be alive and able to testify.
However, registering a Will is advised in order to prevent challenges to its contents 5.
Additionally, it will serve as evidence and confirmation that the Will is the decedent's final
testament.

TRANSFER OF PROPERTY UNDER UNREGISTERED WILL:

In the case of an unregistered will, transferring property requires obtaining a probate, a process
mandated by several Indian states for property transfers. If the will is unregistered, the claimant
must obtain a succession certificate from the court. A probate is essentially a copy, issued under
the seal and signature of the competent court, certifying the proven validity of a specific will.
It is important to file a petition for probate or letters of administration within three years of the
testator's demise to avoid unnecessary complications and delays in the future. The executor of
the will plays a crucial role in executing the deceased's wishes, including dividing inheritances
and settling debts. Courts typically grant probate to the named executor in the will, entrusting
them with the responsibility of distributing inheritances as specified.
However, it's essential to note that ancestral property cannot be transferred under a will, whether
registered or unregistered, unless it is legally partitioned. Understanding these legal processes is
crucial for a smooth and legally sound transfer of property in accordance with the testator's
wishes.

CONCLUSION:

In conclusion, the registration of wills in India is a crucial step to ensure the proper execution of
the testator's wishes and the distribution of assets according to their desires. This process not
only grants legal validity to the document but also safeguards the interests of all parties involved.
The Sub-Registrar Offices play a pivotal role in handling the registration process, recording, and
preserving the testator's will as an official document.
To register a will, the testator must actively fulfill certain statutory requirements. They should be
of sound mind, free from undue influence, and capable of making informed decisions. The will
must be executed in the prescribed form, on stamp paper of appropriate value, and in the

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presence of witnesses. Additionally, the testator is required to pay the registration fee and stamp
duty to actively complete the process. This meticulous approach ensures that the legal framework
is adhered to, providing clarity and protection for all parties involved in the will registration
process.

REFERENCES:

BOOKS:

1. S.N. Shukla’s Transfer of Property Act, Allahabad Law Agency

2. Law of Transfer of Property - Vepa P. Sarathi, Eastern book company

WEBSITES:

1. https://indiankanoon.org/
2. https://blog.ipleaders.in
3. https://indiacode.nic.in
4. indialawofffices.com