Synopsis
- Concept of Will
- Essential Characteristics of a Will
- Enforcement of Will
- Advantages of Will Registration
- The procedure for Will Registration
Concept of Will
A Will or testament is a legal declaration by which a person, the testator, names one or more persons as the executor to manage their estate and provide for the transfer of their property after his death. This property can include all types of property, like movable properties and immovable properties. By way of a will, one can safeguard their valuable assets. Some examples of movable properties are bank accounts, intellectual property, jewelry, etc. This will provide the Testator with an advantage in the distribution of assets according to his wish.
Will is defined in various Indian Statutes.
According to Section 31 of the Indian Penal Code, The words “a will” denote any testamentary document.
Section 2(h) of the Indian Succession Act of 1925 defines a legal declaration of the testator’s intention concerning his property, which he desires to be carried into effect after his death.
The essential characteristics of Will are:-
- There must be a legal declaration,
- Such declaration must concern the property of the testator; and
- The declaration must be intended to operate after the death of the testator. [Smt. Bhagya Wati Jain and Another v. General Public and Others, AIR 1995 PH 201]
Will can be of various kinds, some of them are as follows:-
Joint Will
A joint will is said to be a single document of will be executed by two or more persons which are duly executed by each of the executants so far as his property is concerned and is entitled to probate upon his death as if he had made a separate will.
Mutual Will
According to the Supreme Court of India, a will is mutual when two testators confer upon each other reciprocal benefits, as by either of their constitutions, the other as legatee, that is to say, the executants fill the role of both testators and a legatee towards other. But where the legatees are distinct from the testator, there can be no question of a mutual will. [Kochu Govindan Kaimal and Others v. Thayankoot Thekkot Lakshami Amma and Others, AIR 1959 SC 71]
Oral or non-cumulative Will
The third type of Will is a verbal or non- cumulative Will, which is one where the testator declares the intention of his disposition of property to take effect before a sufficient number of witnesses.
Privileged Will
Section 65 of the Indian Succession Act deals with privileged Wills, which state that any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may dispose of his property by a Will made in the manner provided in section 66, given that he has completed the age of eighteen years. Such Wills are called privileged Wills.
Unprivileged Will
All wills made by persons other than mariners, soldiers, and airmen are underprivileged wills.
Holograph Will
A Holograph will is a will entirely written out by the testator in his own handwriting. From the very nature of the document, it carries a strong presumption of genuineness.
Unnatural or in-officious Will
Next comes an unnatural or in-officious Will, which is inconsistent with the testator’s natural affection towards his heirs or his moral obligation to perform. By such unnatural Will, a testator may dispose of his entire property to a stranger, excluding his wife, children, and near relatives.
Contingent Will
In this type of Will, a testator may refer in his Will to some contingency, such as an impending journey by him or his possible death while abroad, or other events in terms that make the Will conditional or limited in operation.
Essential Characteristics of a Will
These elements are essential to establish the validity and credibility of the Will, ensuring that the testator’s wishes are carried out as intended. Here are the crucial characteristics of a valid will:-
Details of the Testator
The Will should include essential information about the person making the Will, such as their full name and address. This helps identify the testator and ensures the document is associated with the correct individual.
Purpose and Voluntariness
It is crucial to explicitly state the purpose of the Will, clarifying the testator’s intention to distribute their assets after death. Additionally, the Will should emphasize that the testator is of sound mind, meaning they possess the mental capacity to understand the consequences of their decisions. This provision helps confirm that the testator is making the Will voluntarily and without undue influence or coercion from others.
Use of Unambiguous Language
The Will should employ clear and unambiguous language when bequeathing the testator’s estate. Using precise and specific wording can minimize potential ambiguities or confusion, reducing the chances of disputes or misinterpretation among beneficiaries.
Appointment of an Executor
The testator should name an executor within the Will. The executor is the person responsible for overseeing the distribution of the estate as outlined in the Will. Mentioning the executor’s name ensures that the testator’s chosen representative knows their responsibilities and can carry out the necessary duties.
Schedule of Properties
A comprehensive list or schedule of the testator’s assets and properties should be appended to the Will. This schedule provides a clear overview of the estate’s assets, ensuring that everything is noticed during distribution.
Testator’s Signature and Witness Attestation
The testator should sign the Will, indicating their approval and acknowledgment of its contents. Additionally, two witnesses must attest to the Will during the testator’s signing. The witnesses’ role is to confirm the testator’s identity, their mental capacity, and the voluntary nature of the Will. The witnesses’ signatures serve as a validation of the document’s authenticity.
Enforcement of Will
In the context of enforcing a Will, the role of the executor is indeed vital. The executor is responsible for carrying out the testator’s wishes and safeguarding the rights of the beneficiaries outlined in the Will. They act as the estate’s legal representatives and ensure that the assets are distributed according to the terms specified in the Will.
In India, the Indian Succession Act governs the legal framework surrounding Wills and their enforcement. According to the Act, enforcing rights under a Will typically requires obtaining a Probate, a court-certified validation of the Will. The Probate is evidence of Will’s authenticity and grants legal authority to the executor to administer the estate.
Advantages of Will Registration
Having a registered Will can offer several advantages, as mentioned:
Preservation of Will
A registered Will protects against the risk of destruction, damage, loss, or theft. By registering the Will, it becomes an official legal document that is securely stored and preserved by the Registrar. This ensures the original copy of the Will remains intact and accessible when needed.
Safe Custody
Registering a Will with the appropriate authority ensures that the Registrar holds it in safe custody. This provides an additional layer of security and minimizes the chances of the Will being tampered with or misplaced.
Restricted Access
A registered Will typically includes provisions restricting access to its contents. Without the express written permission of the testator, no one can examine or access the Will until the testator’s death. This helps maintain the confidentiality and privacy of the testator’s intentions and ensures that the Will remains confidential during the testator’s lifetime.
Simplified Property Transfer
If an uncontested registered Will exists, it can streamline the process of transferring leasehold property to the legal heirs. By providing a legal and recognized document that clearly states the testator’s wishes, the legal heirs may obtain the mutation of leasehold property without needing separate probate or additional legal procedures.
The procedure for Will Registration
Under the Registration Act, the registration of a Will takes place at the Sub-Registrar offices, which the State governments establish. There is a registration fee charged with the same. Here are some key points regarding the registration process and subsequent actions:
Stamp Duty
Stamp duty is chargeable for registering a Will. The exact amount varies depending on the applicable laws of the respective state.
Witness and Testator
After drafting the Will, the testator must accompany a witness when visiting the Registrar for the registration process on the required Stamp paper. The witness’s presence helps validate the authenticity of the Will.
Safe Custody
Once the Will is executed and registered, the testator has the option to deposit the registered Will in safe custody with a lawyer. Additionally, Registrars themselves have the authority to receive and hold deposited Wills at sub-registrar’s office.
Sealed Cover
When a testator or a person authorized by the testator deposits a Will with the Registrar, it should be sealed. The Registrar would then hold the sealed cover containing the Will after verifying the identity of the testator or the authorized person.
Changes or Withdrawal
If the testator wishes to make changes or withdraw the Will from the Registrar, they can apply personally or through a duly authorized agent. The Registrar can then deliver the Will after satisfying the necessary requirements.
Opening the Will
In the event of the testator’s death, any person can apply to the Registrar to open the cover containing the deceased’s Will. The Registrar can open the cover in the applicant’s presence and provide a copy of the Will. However, the original Will remains in the custody of the Registrar until a competent court orders its production.
Conclusion
In conclusion, the registration of wills in India ensures that the testator’s wishes are properly executed and their assets are distributed according to their desires. The process grants legal validity to the document and protects the interests of all parties involved. Sub-Registrar Offices handle the registration process, where they record and preserve the testator’s will as an official document. To register a will, the testator must fulfill certain statutory requirements actively. 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 presence of witnesses. Additionally, the testator needs to pay the registration fee and stamp duty to complete the process actively.
Registration
Registration is particularly crucial for wills pertaining to immovable properties, such as leasehold or ancestral properties. It establishes a legal record of the disposition of property, ensuring its proper transfer upon the testator’s demise. Additionally, registration provides valuable protection against potential disputes and legal errors that may arise in the future. Consulting a legal professional during the registration process is highly recommended to avoid any mistakes or omissions. They can guide individuals through the necessary steps, help prepare the property documents, and ensure compliance with all legal requirements. Furthermore, registration offers the testator the benefit of privacy and confidentiality. By registering the will, individuals can maintain the secrecy of their distribution of assets, ensuring that their intentions are not disclosed prematurely.
In conclusion, registering a will in India is essential for preserving the validity and authenticity of the document. It protects the interests of all parties involved, facilitates the smooth transfer of property, and minimizes the potential for disputes. By adhering to the prescribed procedures and seeking professional guidance, individuals can secure their valuable assets and ensure their distribution in accordance with their wishes.
An Expert Guidance
It’s important to note that specific procedures and regulations may vary among different states and jurisdictions within the country. Therefore, individuals should consult the local laws and seek legal advice to ensure compliance with the applicable rules and requirements regarding drafting and registering with Wills. For online legal advice and will drafting, please get in touch with Legal251 at toll-free no.- (+91) 77728-77729 or download the Legal251 mobile app now.
