Of Registration and Deposit of Wills

INTRODUCTION

In India, it is not mandatory to register a Will. However, some people prefer to register their Wills to add a layer of authenticity to the execution of the Will. Some questions that naturally arise are whether a testator can execute a subsequent unregistered Will after registering the previous Will, whether the validity of a registered Will can be challenged in probate proceedings, whether registration of a Will dispenses with the requirement of probate, etc.

ANALYSIS

Section 63 of the Indian Succession Act, 1925 lays down the manner in which Wills are to be executed. Registration is not a requirement under Section 63. Further, under Section 18 of the Registration Act, 1908 (“the Act”), Wills are an optionally registrable document. The process for registration of Wills is set out in Sections 40 and 41 of the Act, for those who choose to register their Wills. A Will can be presented for registration before the Registrar or Sub-Registrar by the testator/testatrix in his/her lifetime. It can also be presented for registration by the executor or legatee after the demise of the testator/testatrix. The primary reason for registering a Will is to add a layer of authenticity to its valid execution. However, the validity of a registered Will can be challenged and registration is not the sole determining factor for ascertaining valid execution. It is possible that a registered Will maybe found to be executed under coercion, undue influence or fraud and hence, invalid.

Further, registration of a Will does not dispense with the requirement of obtaining probate to prove the validity of the Will, where obtaining such probate is mandatory. A registered Will has to go through the same rigours as an unregistered Will for grant of probate. Another question that often arises is whether a subsequent Will needs to be registered if the previous Will was registered. To put it differently, if there is a registered Will of an earlier date and an unregistered Will of a subsequent date, which will prevail? It is a settled position of law that a Will being an optionally registrable document, a subsequent Will, even if unregistered, will prevail upon an earlier registered Will, if the execution of such subsequent Will is properly proved.

The Act also provides for deposit of Wills with the Registrar. There maybe cases in which the testator/testatrix have an apprehension that their Will is likely to be concealed or destroyed. In such situations, they can opt for depositing their Wills with the Registrar. Sections 42 to 45 of the Act lay down the procedure for deposit of Wills, withdrawal of deposited Wills and process to be followed on the death of the depositor. The testator can personally or by a duly authorized agent, deposit the Will in a sealed cover superscribed with the name of the testator and that of his agent, if any, and with a statement of the nature of the document. On receipt of such sealed cover and if satisfied that the person presenting the sealed cover is the testator or his agent, the Registrar shall transcribe the aforesaid superscription in his Register-Book No. 5 and note in the same book and on the sealed cover, the date and time of presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent. A deposited Will maybe withdrawn by the testator or his duly authorized agent. On the death of the testator, an application can be made to the Registrar to open such sealed cover and permit the contents of the Will to be revealed. It is pertinent to note that the Act does not specify or restrict who can apply to the Registrar on the death of the testator for the opening of the sealed cover.

CONCLUSION

Registration, though not compulsory, maybe opted for by a testator/testatrix to add a layer of authenticity to the valid execution of his/her Will. However, the same can be challenged and will require to be proved in the same manner as an unregistered Will. Deposit of Will with the Registrar maybe opted for by a testator/testatrix in situations where there is an apprehension of the Will being concealed or destroyed. A Will being a solemn document by which a dead man entrusts to the living the carrying out of his wishes, the law has tried to ensure that such document and its execution is safeguarded and protected.

Written by:- Nazaqat Lal, Advocate & Solicitor, Independent practice