Can A Registered Will Be Cancelled?

A Will is a legal document that explains how a person's estate shall pass after her or his death. But what happens if the person changes his or her mind at a later date? Any cancellation or modification of a registered Will? This blog tries to understand and explain the legality, procedure, and contingencies under which a registered Will may be revoked in India.

What Is A Registered Will?

Registered Will means one that has been recorded formally with the Sub-Registrar of Assurances in terms of the Indian Registration Act, 1908. Though registration of a Will is not mandated, it does lend to it authenticity and minimizes the chance of disputes among heirs.

Features of a Registered Will:

• Legally valid.
• More difficult to challenge due to the official documents.
• Still cancellable or amendable during the lifetime of the testator.

Can A Registered Will Be Cancelled?

Yes, a registered Will can be cancelled or revoked at any time during the lifetime of the testator as long as he or she is of sound mind. Registration of a Will gives it weight in law as such but does not seal it against change.

Legal Backing- Indian Succession Act, 1925

• Section 62 of the Indian Succession Act, 1925 states:

"A Will may be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will."

This section clearly provides the legal right to the testator to revoke or change the Will at any time when he is mentally competent.

• More pertinent to this issue is section 69 of the Indian Succession Act, 1925, which states:

"A Will is revoked by the execution of a subsequent Will or codicil; or by some writing declaring an intention to revoke the same and executed in the manner in which a Will is required to be executed; or by burning, tearing or otherwise destroying the same by the testator."

Does Registration Make A Will Permanent?

No. While registration helps prove the genuineness of the document and the intention of the testator, it does not take away the testator’s right to revoke it. An unregistered Will subsequently, if duly executed, will cancel the earlier Registered Will.

Grounds And Reasons For Cancelling A Registered Will

Life changes, and the need to change or even cancel a Will can come from a totally different reason. Such reasons are as diverse as most legally recognised ones:

Change In Family

Marriage, divorce, remarriage or any other such change would include: Birth of a new child or grandchild, or Death of an earlier named beneficiary or Separation or reconciliation with family members. All priority shifts with changes in family relationships, so does your Will.

Changing The property Or The Financial State

Selling assets that were mentioned in the old will. Buying new assets that were not included in the old will. Inherit large amounts or increase new liabilities. Your estate may have changed dramatically, and so has your intention in it with an old will that does not accurately reflect either.

Disputes Or Legal Concerns Conflict With Current Beneficiaries..

• suspicions of fraud, misrepresentation, or coercion of the old Will;
• Realization that earlier Will was made under pressure or confusion

Health And Mental Awareness

• Recovery from the illness or cognitive disorder that previously inhibited decisions to be made with proper judgment.
• After complete mental ability is restored, one may want to make changes to the Will.
• A Will that was prepared when a person does not give sound judgment becomes void upon reestablishment of that person's mental judgment.

Better Legal Advice Or Estate Planning

• Previously done without the heart of legal accompaniment
• Want tax-saving strategies, trust or charity establishment for donations

Your Will should go in line with your long-term estate strategy. Updating or cancelling it on professional advice is always wise.

Legal Methods To Cancel Or Revoke A Registered Will

The Indian Succession Act, 1925 lays down methods that are quite legal in the annulment of that Will. Revocation is a right which was given to you by law on a Will, whether registered with it or not. These methods are the same as whether registered or unregistered, as long as intention and procedure exist within them.

Method 1: Execute A Fresh Will

• Using a new Will is quite possibly the most effective and most universally accepted legal means of revoking a prior Will.
• "A Will is revocable or alterable by its maker at any time during which he is competent to dispose of property by Will," says Section 62 of the Indian Succession Act, 1925 .
• This clause means that any new Will, if it is duly executed, would automatically supersede the prior one.
• To avoid legal complications, the new Will should expressly contain a clause revoking: "I hereby revoke all prior Wills and codicils made by me." This is known to be the safest and cleanest manner of revoking a prior Will whether or not it was registered.

Method 2: Physical Destruction Of The Will

A Will can also be revoked by physically destroying the document with the intention to revoke it. This is covered under Section 70 of the Indian Succession Act, 1925.

• The section 70 states: "Burning, tearing or otherwise destroying a Will by the testator, or by someone in his presence and at his direction with an intention of revoking it, is how a Will gets revoked."
• Here are important aspects:
• Intention, Destruction must happen by the testator or under his discretion, and in his presence. Accidental damage or destruction does not amount to a revocation.
• It should be noted that even if such an action is legally valid, it is quite risky and should therefore be kept very much on record.

Method 3: Written Revocation With Proper Execution

• This is valid for cancelling a Will on a written declaration of revocation if done with the same formalities as a Will.
• Although the Act does not have any specific section for such revocation by means of a revocation deed, Section 62 is really applicable here because that provides for revocation "by some writing declaring such intention," provided:
• The declaration is so signed by the testator.
• It gets attested by two or more competent witnesses like a Will under Section 63.
• If the testator does not have a new Will prepared, then this really is useful.

Step-By-Step Process To Cancel A Registered Will

To ensure that a registered Will cancels itself properly and cannot be contested in the future, it must be by following some legal process.

1. Draft New Will Or Revocation Document

• Start with new Will drafting or preparing for a formal revocation deed clearly mentioning canceling all previous Wills and codicils.
• The new Will should contain a clause saying, "I hereby revoke all previous Wills and codicils made by me."
• You can alternatively use a revocation deed if you do not wish to write a new Will at that time.

2. Execute Document as per Section 63

Whether you draft a new Will or a written revocation, it must be executed in line with Section 63 of the Indian Succession Act, which states that:

• The testator must sign or affix their mark to the document.
• The signature must be made in presence of at least two witnesses.
• Each witness must also sign the Will in the presence of the testator.
• Witnesses should be adults of sound mind and preferably no beneficiaries under the Will.

3. Register The New Will (Optional)

Registration of a Will is not a must, but it is an additional legal weight and evidentiary value. Even though the earlier Will was registered and the new one is not, the new validly executed Will prevails. If you choose to register it, do so with the Sub-Registrar's office under Registration Act, 1908.

4. Inform The Sub-Registrar In Case.

It is not very much obligatory according to law that you inform the Sub-Registrar of the revocation or registration of a new Will, but it may help the case in event the earlier Will resurface or is challenged in court.

5. Keep The New Will Secure And Inform Relevant People

Store the new Will or revocation document in a secure place such as a lawyer’s office, a registered Will safe, or with your executor. Instruct the family or trusted individuals about the existence of the new Will or revocation act so that they at least have an opportunity to know about your updated intention.

Important Case Laws On Cancellation Of Registered Will

The Indian courts have dealt with the cancellation and revocation of registered Wills very closely, observing that a Will, irrespective of whether it has been registered or not, can be revoked by the testator in a legally recognized manner. Below are some of the five important judgments that cast the law beauties into this matter.

Ajay Gupta & Anr. vs State (Delhi High Court, 2012)

In Ajay Gupta & Anr. vs State, Delhi High Court confronted a most peculiar case where a Will is both made and cancelled on the same day. The Will was made on 10.09.1998. On the same date, a document cancelling it was registered. The court remarked that, in terms of revocation of the Will prima facie, Act of revocation applicable is by Indian Succession Act, 1925 only. Any irregularity or procedural deficits would indeed render such act of revocation invalid.

N. Mohan Reddy vs M. Manjunatha Reddy (Bangalore District Court, 2021)

In N. Mohan Reddy vs M. Manjunatha Reddy, the testator made a Will in favor of two sons and later revoked the same by a registered deed of cancellation. The court upheld the cancellation of the Will, reiterating that the testator is legally empowered to cancel a Will during his/her lifetime with the registration of the revocation further empowering its status as evidence.

T.C. Subramanian vs The Sub Registrar (Madras High Court, 2017)

In T.C. Subramanian vs The Sub Registrar, the Madras High Court lectured on unilateral cancellation of registered documents. This decision, while characterized primarily by its focus on property documents, postulates that perhaps any cancellation deed must adhere to due process and cannot thereby be entitled in the absence of proper execution, and mutual consent where appropriate. This rule also applies equally to registered Wills if revoked by deed.

Ganga Prasad vs Munna Lal and Others (Allahabad High Court, 2017)

The matter Ganga Prasad vs Munna Lal and Others concerns allegations of a forged Will. The plaintiff sought cancellation on the grounds of forgery and improper execution. The court observed that the burden of proof lies heavily on the challenger to establish its genuineness since the courts will not cancel a Will on mere suspicion.

Shanti Swaroop v. (Deceased) & Others vs. Onkar Prasad (Deceased) & Others (Allahabad High Court, 2023)

In Shanti Swaroop vs Onkar Prasad, the entire debate in the Allahabad High Court revolved around the question of the timing and maintainability of a suit for the cancellation of a Will. The court held that any right to challenge or seek the cancellation of the Will is vested in an individual upon the death of the testator, reiterating the legal principle that a will during the lifetime of the testator has no legal effect at all.

Conclusion

The registered Will acquires greater evidentiary value due to its formal character but is not inviolable. Indian law acknowledges that personal relationships, ownership of property, and financial considerations are never static; therefore, a testator is in principal allowed to revoke or modify the Will at any point in time during his lifetime, provided he is in a sound state of mind to do so. Sections 62, 69, and 70 of the Indian Succession Act, 1925, lay down unambiguously how revocation may take place: that is, by executing a new Will, by destroying the old Will, or by making a written declaration. Registration thus does not curtail any such right but merely reinforces its credibility in certain legal circles.

On the other hand, if the revocation is to be enforced and not contested, proper legal procedures must now be followed: executing a new Will, having witnesses there, and registering this new document whenever possible. Informing your family members or legal advisors and keeping the most recent Will in a safe location will prevent complications after death. If personal changes or professional advice trigger an update of your estate planning, the most recent intention should be put down in a valid Will. Always consult a lawyer in case of doubt to avoid technical glitches that may one day lead to litigation among your heirs.

Frequently Asked Questions (FAQs)

Here are answers to some of the most frequently asked questions so as to further clarify general doubts surrounding registered Wills and their revocation:

Q1. How can a registered Will be canceled?

A registered Will can be canceled by the testator at any time during life by:

(a) Executing a new Will which expressly revokes the previous one,

(b) Physically destroying the old Will with the intention of revoking it, or

(c) Executing a revocation document in writing in accordance with the same legal formalities applicable to a Will (signing and two witnesses attesting to it).

These procedures are duly sanctioned under Sections 62 and 70 of the Indian Succession Act, 1925.

Q2. What is the limitation for cancellation of a Will deed?

There is no statutory limit on the cancellation of a Will by a testator during his/her lifetime. There is, however, a limitation period for legal heirs or any third party seeking to challenge or get a Will canceled after the testator's death, which they must do within the prescribed time as per the Limitation Act of 1963, generally three years from the date they came to know about the existence of the Will.

Q3. Can we challenge a registered Will?

Yes, a registered Will can be challenged in a court of law after the death of the testator. The common grounds include:

• testamentary capacity;
• fraud, coercion, or undue influence;
• forgery or improper execution;
• disposing of legal heirs without justification.

Registration does not create a protective shield around a Will; it only bolsters its evidentiary value. The onus lies on the challenger to prove the Will as null and void.

Q4. How long does a registered Will remain valid in India?

A registered Will continues to be valid forever unless it is:

• revoked at the testator's will in their lifetime,
• superseded by a newer valid Will, or
• declared invalid by a competent court.