Overview
In the present world, everyone wants to lead a comfortable life and wishes the same for future progenies. Parents during their lifetime makes sure that their children and their upcoming generations lead a healthy and happy life, but the question that what will happen to their assets can only be solved by way of making a “Will.”
A will can be defined as a legal document which allows a person to decide what will happen to his movable and immovable properties after his death. Generally, it is the common principle that after the death of a person, his property will be divided between his legal heirs as per the rules of inheritance, natural justice and equity, and in the absence of the legal heirs, the property devolves into the state.
However, in case of conflict or dispute, leading a peaceful life with that property becomes almost impossible as it gets converted into a long legal battle at some point in time, it may happen due to a dispute over the land concerned or conflict between co-heirs regarding their shares or claim of some other relative over that property and so on. To avoid all these issues, it is more feasible to draft a will, while alive. In a will, the testator has the power to choose. He can choose the legatee beneficiary(ies).
The Islamic conception of will is such that a will means a declaration in compliance with the moral duty of every Mussulman to make arrangements for the distribution of his property. It serves the dual purpose of moral exhortation as well as legal rectitude.[1] If a Muslim has married under the Special Marriage Act, then he will be governed by the provisions of the Indian Succession Act, of 1925.
The Hindu law, traditionally governed by the Shastric law does not have as such a concept of will, but after the British Raj introduced the will in Indian Society, it was adopted by the Hindus as well. Sec 30 of The Hindu Succession Act mentions the Testamentary succession (will) will be governed as per the provisions of the Indian Succession Act, 1925 or any other law applicable to Hindus at that time.
So, it becomes important to learn about the will in general in accordance with the Indian Succession Act, of 1925, which governs the majority of the wills in the country.
What is Will ?
Section 2 (h) of The Indian Succession Act, 1925, defines ‘Will’ as “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.
Any type of property can be given in a will, whether movable or immovable or corporeal or incorporeal or tangible or intangible.
A testator should be of sound mind, major, understand the consequence of that will, be capable of reasonable justification and make will without any undue influence or coercion with his free consent. (Section 59 Indian Succession Act, 1925, specifies the person eligible to write a will).
Generally, a will contains details about the property of the person (testator) which he wishes to give in will and to whom in what proportion it will be distributed after his death.
A will can be made any number of times during the lifetime of the testator, and generally all the wills are read together and in case of inconsistency, the last will prevails which was held in the case of Badari Basamma versus Kandrikeri(1984)[2]
A will can be made on any plain paper or even on a stamp paper, provided that it must be signed by the testator and at least two witnesses. Afterwards, it can also be registered at the registrar or sub-registrar's office, under whose jurisdiction a major part of the property lies. Both registered and unregistered wills are legal and valid, however, the authenticity of a registered will cannot be ignored.
There is no fixed format for writing a will, but the wording and intention must be clear.
A will can also be revoked by the testator, anytime when he is competent to do so (Sec 69 Indian Succession Act 1925)
There are many types of will, but we are discussing unprivileged wills only.
Registered Will
A will written or understood completely and signed by the testator as well as at least two witnesses, registered as per the procedure at the registrar's office, comes under the category of the registered will.
In the case of Maturi Pullaiah & Anr. vs Maturi Narasimham & Ors. [AIR 1966 SC 1836], the Supreme Court of India held that the registration of a will is not necessary.[3]
The Indian Registration Act, 1908, section 18, also provides the exception for the will.
Registration of a will is completely optional; however, it gives an edge to that of the will.
There is no time limit provided to register a will because of its delicate nature (section 23 read with sec 27, Indian Registration Act).
A will can be registered by the concerned registrar at the office or even at his residence, in special cases (ill health, apprehension of death etc), Sec 31 Indian Registration Act, provides this exception in case of will.
Registering a will saves the legatee from most of the legal hassles, however, registered will is not the ultimate document and can also be challenged in court.
In the case of Rani Purnima Devi & Another vs Kumar Khagendra Narayan Dev & Anr [1962 AIR 567, 1962[4]], the Supreme Court held that “There is no doubt that 'if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination.”
Unregistered Will
A will written by the testator but not duly registered is an unregistered will.
Generally, it is uncertain in the eyes of the law can be successfully challenged in court in most cases and can easily be overridden in the web of legal complexities.
As this will is not registered, it does not have any official record, and it can be easily misplaced, torn, stolen or altered.
In the case of a Registered Will, the burden of proof is heavy and is on the person claiming the will to be erroneous.
Unregistered will face many challenges, as in the case of transfer of property, the executor will have to go through probate. “Probate” means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator.[5]
The claimant must obtain a Succession certificate from the court before getting any movable property of the testator, such as bank account balance, shares etc.
Steps to getting a will registered
Drafting a well-defined will with clear intention.
Visiting the sub-registrar's office of the area where the majority of the property lies in that jurisdiction which is the subject matter of the will.
Arranging proper documents of the testator and the witnesses also, along with original and multiple copies.
Submitting the application.
Verification process to ensure the validity.
Paying required fees.
Declaration of the witnesses.
Registration and recording.
Getting a copy of the registration.
[1] Muslim Law, Syed Khalid Rashid
[4] Rani Purnima Devi & Another vs Kumar Khagendra Narayan Dev & Anr. [22 August, 1961]
[5] Sec 2(f) Indian Succession Act, 1925
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