Unregistered will in India

A will may occasionally not be registered after the testator passes away. Although the claimants may register it even after the testator's death, it is not required to register a will in India.

What occurs then if a Will is not registered? In this blog, you can learn more about an unregistered will's legal position and ramifications.

A last will is a legally binding statement of the testator, the person who creates the Will, about the property they own or have rights to. Testamentary succession is the partition of property following the death of the testator who made a will. The last Will must specify that the testator wanted it to take effect after his death.

A will is not required to be registered by the list of papers listed under Section 18 of the Indian Registration Act of 1908. Therefore, an unregistered Will is lawful in India, and it is up to the testator to decide whether or not to register the Will.

To be legitimate, a will must adhere to the following requirements:

The testator, or the person who makes the Will, or another person acting in the testator's presence and following his instructions, must carry out the instructions of the Will. The testator may also include his thumbprint if attaching his signature is not possible.

The signature must be positioned so that it will appear, at a minimum, that the person intends to carry out the Will.

The testator shall sign the Will in the presence of two witnesses, each of whom shall affix his or her signature.

If two witnesses sign the Will in the testator's presence and the testator signs the Will in their presence, the unregistered Will satisfies the legal condition of validity.

Differance Between Registered Will and Unregistered Will

The difference between a Registered and an Unregistered Will is as follows:

Registered Will: 

There is no stamp duty and minimal registration expenses associated with the registration of a will. If a person registers his Will, the legal heir's ability to change it is much facilitated. A registered will is more reliable in a court of law. A will that has been recorded cannot be easily contested in court.

Unregistered Will:

An unregistered will is one that the Executor has written on a piece of paper and stored safely for use in the future after his or her passing. According to the law, an unregistered will is uncertain. As numerous incidents of phony wills are brought before courts. A judicial challenge of an unregistered will is relatively simple to win.

Validity of Unregistered Wills

There is no requirement that a will be registered under Section 18 of the Indian Registration Act, and as a result, there is no dispute regarding the proven validity of an unregistered will since the same Will is valid regardless of registration as long as it complies with all requirements for will validity.

The fact that a will is not registered does not diminish its significance. To prevent the contents of your Will from being contested, it is usually advisable to register it. Registering the Will serves as evidence and confirmation that it is the decedent's last surviving Will. A will that has not been registered can also be readily altered, defaced, altered, or stolen because the Sub-Registrar does not have custody of it.

Even so, registration will have advantages. The person presenting a will has the burden of evidence, and he or she must persuade the court that the document being presented is the last Will of a free and competent testator. However, if two witnesses are present and sign the same Will, an unregistered will is sufficient. Therefore, section 63 of the Indian Succession Act, which applies to all unrecorded wills, makes will registration optional.

Additionally, even after the required four-day period has passed, the registration of the Will is exempt under section 23, read with section 27 of the Indian Registration Act. A Will may be registered at any time following its execution because there is no set period within which it must be registered.

Even after the testator's passing, an unregistered will may still be registered at a later time. To accomplish this, the Sub Registrar must see witnesses to the Will, the testator's death certificate, and the original Will. After being satisfied with the document's authenticity, the sub-registrar will register it. The Executor, or any other legal heir in the absence of the Executor, may petition the court to get the letters of administration if you do not want your Will to be registered.

The petition must be submitted to the relevant District Court or High Court to receive such a Letter of Administration or Probate. Approaching the Court to acquire a letter of administration or probate is not subject to any time restrictions. The Executor will be properly questioned to explain the delay if such a petition is submitted more than three years after the testator's death.

According to Section 63 of the Indian Succession Act, there must be at least one witness who attests to the execution and validity of an unregistered will to establish its existence. Such an attesting witness must not be a beneficiary under a will because the beneficiary will eventually be required to present the Will to a court as a propounder and respond to any challenges to it. Such an attesting witness must be alive and able to testify that the testator signed the Will of his own free Will.

A will, whether it is registered or unregistered, is always open to challenge. If the court accepts the challenge, the Will must then go through the complete trial procedure as per Will laws and become a lawsuit. An unregistered will, however, has a difficult time being accepted by the courts because there is a chance that its validity could be questioned due to the likelihood of fraud.

Can an unregistered be contested?

A will cannot be challenged on the basis that it is not registered alone. However, it is contested if the document is not signed in front of two witnesses and attested by them, the testator lacks testamentary capacity while drafting the Will, the testator had no intention of making the Will, the Will was made through fraud or undue influence, the Will was revoked, a family member asserts that they were not adequately provided for by the Will, etc.

Transfer of property under an unregistered will

The Executor of an unregistered will must get probate of the Will to transfer property, as this is a requirement in several Indian states for the transfer of real estate. Probate is a legal document that certifies that a particular will has been proven to be valid and is issued under the seal and signature of a court official.

If such is unregistered, the claimant is obligated to obtain the succession certificate from the court, which is necessary to transfer movable property such as bank account balances, shares, bonds, and securities, among other things.

To minimize needless delays, the limitation period in the case of a petition for probate or letters of administration of a Will must be filed within three years of the testator's passing. Additionally, Wills made by Christians and Muslims do not require this probate.

Additionally, the Executor is responsible for collecting the decedent's estate and paying his debts. Courts often give probate to the Executor named in the Will, and the property must be transferred to the beneficiaries as specified under a Will. Additionally, whether registered or unregistered, an ancestral property that has not been divided cannot be transmitted under a will.

FAQs

Can an unregistered one nullify an existing one?

A Will is not infallible, even if it is registered. A legal challenge to it is always possible. Additionally, it is not required that the deceased person's registered will be his or her final testament. An unregistered new will is legitimate and will take precedence over a registered will.

Upon death, is an unregistered will still valid?

Since registering a will is optional, unregistered wills are accepted as valid in India. Although registering a will is formally advised, there is no obligation for doing so. It's vital to remember that a will that hasn't been registered can still be done so even after the testator has passed away. However, disputes related to wills, particularly those that are unregistered, can often arise and lead to legal battles and prolonged litigation.

What gives a will its legitimacy?

A will can only be legally binding if it is signed by a person who is at least 18 years old, makes it willingly and without the influence of another person, and is of sound mind.

Which members of the family can challenge a will?

Theoretically, anyone can contest a will, including siblings and potential residuary beneficiaries who may not initially appear to benefit from it. But it would be best if you didn't think about disputing a will unless you have a strong reason.

Who Is Ineligible to be a will Witness?

You cannot be a witness to a will if you are blind or partially sighted, except for beneficiaries and their spouse or civil partner. This is necessary because the witness must witness the act of writing.

About The Author: 

Adv.Amrita A J Pinto / Saldanha is a distinguished advocate specializing in Civil law, which includes Family Law (Divorce and custody), Specific Performance of Contract, Wills, Probates/ Succession and planning of estates, and Corporate and property due-diligence (including stamp duty, title search POAs, and registration of Agreements). With over 20 years of legal experience, Adv Amrita has in depth knowledge on clearing titles for properties, performance of Contracts and general property dealing / transactions and also possesses expertise related to recovery of possession of Property and general recovery of loans for properties under mortgage. She has also spent a significant amount of time practising at different tribunals like NCLT, DRT, Consumer Forums and Commissions etc.
For the past few years, Adv. Amrita has also been serving as a women's right activist as well as her legal expertise and unwavering dedication to the clients have earned her widespread respect and admiration in the legal community and several non-profit organizations.