What Is A Will Deed? Legal Process & Benefits Explained

Planning for the inevitable can be a critical part of living responsibly, and a Will Deed, therefore, is one of the cornerstones of undertaking estate planning in India. A Will Deed is a legal document that provides that an individual’s wishes on how they’d like their assets to be dealt with after they’re no longer alive. Being aware of a Will Deed: what it is, its format, the legal processes in getting one, how to enact it, and the many benefits of having one, is extremely important to ensure a smooth and peaceful delegation of your hard-earned belongings to your loved ones.

In this blog, you will get to know about

• Legal aspects of a will deed.
• Advantages Of Having a Will Deed.
• Relevant FAQs.

What Is A Will Deed?

A Will, or Will Deed, is a legal expression by which a person (called the testator) states what they want for the distribution of their property when they die. A Will is a testamentary document and is not effective until the testator passes away. A Will is not operative while the testator is alive, so other legal documents with immediate effect don't apply to a will deed. Once a testator executes their will, they may change their mind, and there is no bar to revocation by a testator of a Will at any time while they are alive.

Who can make a Will Deed?

Any person who meets the following criteria can make a valid Will Deed:

• Sound Mind: The testator must be of sound mind at the time of making the Will. They should know the effect of the act and be able to make a sound decision about their property and its duly intended distribution (Section 59 of the Indian Succession Act, 1925).
• Not a Minor: The testator must not be a minor (a person under the age of eighteen [18 years] in India). A minor is not capable of making a Will even if they have the capacity to understand what a Will is.
• Free Will: The Will must be made of the testator's free will. This means that the testator made the Will voluntarily and not under duress, undue influence, fraud, or misrepresentation (Section 61 of the Indian Succession Act, 1925). Any Will made under duress, undue influence, fraud, or misrepresentation can be challenged in Court.

The Testator is the legal term given to a person who makes the Will Deed. The person who owns the property, makes a wish in the Will regarding the distribution of that property after his or her death, and becomes an important figure in the creation of a Will Deed is called a testator. His intention and mental capacity are of utmost importance on the legality of the Will itself.

What Is A Will?

A will essentially represents a legal document, which gives directions by the person as to who shall bear what property after death. It is an important estate-planning tool since it gives individuals the power and the right to determine the future of their assets and provide for their loved ones in accordance with their wishes.

Difference Between Will And Will Deed

While the terms "Will" and "Will Deed" are often used interchangeably, "Will Deed" specifically emphasizes the formal, written document that embodies the testator's wishes. A "Will" can represent the larger notion of testamentary disposition, while the "Will Deed" itself is a physical instrument of law that captures that disposition. In this way, a Will is the intention, and the Will Deed is the written intention represented in a legally sound format.

Can A Will Deed Be Challenged?

Yes, a Will Deed can be challenged in court by interested parties who have valid legal grounds to dispute its authenticity or validity.

Grounds For Challenge:

• Lack of Testamentary Capacity (Section 59, Indian Succession Act, 1925): As stated previously, if the testator was not of sound mind when executing the Will, a challenge may arise. Witness evidence and medical records are useful in this type of claim.
• Undue Influence, Fraud, or Coercion (Section 61, Indian Succession Act, 1925): If one can establish that the testator was coerced into executing the Will against their true wishes, the Will can be contested. Typically, this involves establishing the existence of a dominant relationship and suspicious circumstances.
• Improper Execution (Section 63, Indian Succession Act, 1925): The failure to comply with the legal requirements of signing by the testator and attestation by at least two witnesses in the testator's presence may invalidate the Will.
• Forgery: If the Will or the testator's signature is proven to be fraudulent.
• Revocation: If a valid Will is drafted after the executed Will or if a testator revoked an executed Will in a lawful way (such as writing and executing another will or destroying the old will with an intention to revoke).
• Suspicious Circumstances: The circumstances surrounding the execution of the Will may be peculiar and thus provide grounds for challenge if they raise doubts as to its validity or the free will of the testator. This could include the unreasonable exclusion of natural heirs or undue involvement of a beneficiary in the formation of the Will.

Role Of Probate In Proving The Will

Probate is the legal measure by which the validity of a Will is accepted by the court and the executor, named in the Will, is given permission to administer the deceased's estate. Under Section 2(f) of the Indian Succession Act, 1925, probate means a copy of the Will certified under the seal of a competent court with a grant of administration to the estate of the testator.  

In many instances, it may be true that regardless of the presence of a Will, if the Will dealt with immovable property, the executor must obtain probate to legally transfer the assets to the beneficiaries. On the application for probate, the court issues and serves citations on the legal heirs of the deceased and invites objections to the validity of the Will. At this stage, any potential challengers may raise objections and counterarguments against the validity of the Will, so it will be an opportunity for them to express their views.

Likewise, if the heirs do have valid objections raised and after due process is taken, then the court will dismiss the objections and probate will be granted after acceptance, and the Will is considered valid. Furthermore, the grant of probate is strong evidence of the Will and of the executor's authority as per the Will.

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Importance Of Drafting A Will Deed

• Avoiding Family Disputes: A properly articulated and legally valid Will can greatly minimize the potential of disputes and discord amongst family members regarding the distribution of property after you pass away. A will make clear who is to receive a property item, showing no uncertainty, which reduces the likelihood of conflict and disagreements.
• Smooth Transfer of Assets: A will provides a more predictable and efficient transfer of assets to the intended beneficiaries. In the absence of a will, the disposition of property will occur according to a convoluted series of laws of intestate succession that will produce distributions of property that likely do not represent the deceased person’s intent and will run through a delay and expense of administration.
• Minimizes Legal Challenges: A will that is well written and duly executed, especially if registered and probated, would be much harder to successfully challenge in court. This provides the testator and the beneficiaries with greater protection and peace of mind.
• Choosing Guardians for Minor Children: A Will gives parents the opportunity to appoint guardians for their minor children in the event of their premature demise. The minor children can be cared for by individuals whom the parents have chosen and have faith in.
• Specific Bequests and Charitable Donations: A Will enables an individual to make specific gifts to particular persons, friends, or charitable institutions and to fulfill his personal desires and charitable intentions.
• Appointing an Executor: A testator may choose to designate an individual he trusts as executor of the Will. It is the executor's role to manage the estate, pay any debts and taxes owed, and distribute the remaining assets, as set forth by the instructions provided in the Will. This helps ensure a smooth process in the affair and lessens the burden of the heirs.
• Privacy: Once the Will has been probated, it becomes available as a public document. However, then, the draft has been entirely private; that is, one is not able to keep financial affairs hidden in life.

Types Of Wills Recognized In India

• Simple Will: This type is the most common form of Will where the testator clearly states his or her intention as to the distribution of his or her estate and appoints an executor to fulfill that wish.
• Conditional Will: Conditional Wills and other legal Will types depend on specific conditions being met before the asset is distributed. Example: "I give my house to my son if he graduates on or before his 25th birthday."
• Joint Will: A Joint Will is executed by two or more testators in a single document, generally husband and wife, specifying the distribution of their property after the death of the last survivor. These wills can sometimes be thick deals about revocation.
• Mutual Will: Mutual Wills are arrangements that are made by two or more testators (usually spouses) to confer reciprocal benefits on one another upon a promise or agreement not to revoke the Will without the other party's consent. Ordinarily, these agreements are of utmost importance and must be clearly established.
• Holograph Will: A holographic will refers to the will entirely written and signed by a testator entirely and solely in his or her own handwriting. Although the Indian Succession Act does not make it obligatory, this Will, if properly attested, is valid in law. Most of the time absence of professional drafting creates problems in interpretation.
• Privileged Will: Section 65 of the Indian Succession Act, 1925, relates to privileged Wills, in the context of our present discussion, are Wills made by soldiers involved in an expedition or engaged in actual military operations, or an airman so employed or engaged, or any mariner while at sea. Privileged Wills has some lax requirements with regard to attestation due to the conditions in which a person makes privileged Wills.
• Unprivileged Will: This is the usual kind of Will that must satisfy the requirements of Section 63 of the Act in India with regard to succession in the year 1925 (signature by the testator and attestation to the fact by two witnesses).

Key Components Of A Valid Will Deed

• Declaration: The Will should be read as a clear declaration by the Testator setting out his or her name, address, age, and soundness of mind while executing the Wills free from external pressure. The testator should also declare that this is their last Will, and any Wills or codicils previously executed are expressly revoked.
• Details of Assets: The will shall list out in a transparent manner all the possible assets of the testator, both movable and immovable, with all supporting details that facilitate the protection of their integrity.
• Details of Beneficiaries: The Will should clearly appoint beneficiaries to inherit the assets whilst specifying which asset or share of the estate each beneficiary is to obtain. It should also describe the relationship of the beneficiaries and the testator.
• Appointment of Executor: To be an executor, the testator is to appoint any trusted or trusted persons for the administration of the estate. The executor will receive instructions under the Will and shall administer the estate on behalf of the estate owner.
• Signatures: For a valid Will to be established, it should bear the signature of the testator together with the signatures of at least two independent witnesses. The testator's signature should be found at the bottom of the Will.
• Attestation by Witnesses: It is important that the two witnesses sign the Will by signing it in the presence of the testator and each other. The two witnesses must attest that they saw the testator sign the Will and it must be acknowledged that the testator appeared to be of sound mind. They should also include their full names and addresses.
• Date and Place: The date and place of signing the Will should be clearly mentioned.

Legal Considerations For Registering A Will Deed

The registration of a Will Deed is not mandatory under Indian Law (Section 18 of the Registration Act, 1908), but it has many benefits in terms of its verifiable nature and lowering the chances of disputes in the future.

• Enhanced Authenticity: A registered Will provides compelling evidence of authenticity. The Sub-Registrar records the particulars of the testator and witnesses after verifying their identity.
• Reduced Risk of Challenges: A registered Will should be much more difficult to successfully challenged in court on claims of forgery or undue execution. There is a presumption of validity due to the public record.
• Official Record: A registered Will will be included in the Sub-Registrar's public records, making it less likely it can be tampered with or destroyed.
• Easier Probate Process: Although probate may still be necessary depending on the nature of the assets and local laws, probate is much easier with a registered Will as its authenticity is less likely to be an issue.

Will Deed Registration​ Process

1. Identify Assets and Beneficiaries: Prepare a detailed list of of all your movable and immovable assets and then choose who you want to be the beneficiary of those various assets..
2. Appoint an Executor: An executor shall will follow the Will in administering your estate and externally distribute your assets accordingly.
3. Draft the Will Deed: You can draft the Will yourself in clear and simple language or you may rely on a lawyer. Be sure that you include all the components of a valid Will
4. Sign the Will: After the Will has been prepared, you will generally need to sign it on each page in front of two credible witnesses.
5. Attestation by Witnesses: The two witnesses must also sign the Will in your presence, acknowledging that they have watched you sign the Will document, they should be independent and not be the beneficiaries in the Will or their spouses.

List Of Important Document Required For Will Deed Registration

• Original Will Deed (signed by the testator and attested by two witnesses).
• Identification proof of the testator (e.g., Aadhaar Card, Passport, Voter ID).
• Address proof of the testator.
• Identification and address proof of the two witnesses.
• If the property is immovable, relevant property documents may be required for identification during registration.

Stamp Duty For Will Deed And Will Deed Validity

• Stamp Duty: In India, there is no stamp duty on the registration of a Will Deed. This makes the registration process inexpensive.
• Registration Fees: There is a nominal registration fee payable at the Sub-Registrar office, at the time of registration. The fee will differ slightly from state to state, and you can check at the local Sub-Registrar's office for the exact amount. The fees is generally a few hundred rupees.
• Will Deed Validity: A Will Deed, executed validly, shall remain valid until duly revoked or modified by the testator via a subsequent Will, or via codicil (an amendment to an existing Will). Registration does not affect the validity of a Will, but it does provide greater evidence of validity's due execution.

How to check will deed Status online?

Currently, there is no centralized platform in India to find out the status of a registered Will Deed. After a Will is registered, it stays in the records of the Sub-Registrar's office where registration took place, and usually determined by the address of the testator (the person who made the Will). To find out whether a Will is registered, someone needs to know the exact Sub-Registrar's office and do the process that office prescribed, and this can also mean a manual search of the records.

For example, the Department of Registration & Stamps, Government of Maharashtra (IGR Maharashtra) has an online portal (https://igrmaharashtra.gov.in/). This portal provides a number of online functionalities related to property registration, stamp duty, and an e-search of property documents.

Legal Advantage Of Will Deed

• Testamentary Freedom: Testamentary freedom allows a person to determine how their estate will be distributed, so that their wishes may prevail over the default distribution rules in personal laws such as the Hindu Succession Act, 1956, or the Indian Succession Act, 1925 (for persons who are not Hindus).
• Reduced Disputes: A successfully prepared Will substantially reduces the likelihood of disputes and prolonged court action by legal heirs after the testator's death; time, money, and emotion are involved.
• Clear Title Transfer: A clear and legally recognized process for transferring title to the persons who benefit under the Will leads to "smoother" mutation or transfer of title and ownership.
• Executor's Authority: The executor is empowered to carry out the estate, pay debts and taxes, then obtain entitled assets for beneficiaries in a responsible way.
• Guardianship Provisions: The Will provides the opportunity for parents to elect the guardians for their children if both of them were to die, and who will endeavor to promote the upbringing and welfare of the children in their intended manner.
• Probate Facilitation: A properly executed and (if necessary) registered Will simplifies the probate process, making it less cumbersome and potentially faster, especially in jurisdictions where probate is mandatory for certain assets.

Situations In Which A Will Deed May Get Cancelled

• Making a New Will: The execution of a subsequent valid Will, which contains a definite revocation clause concerning the previous Wills, is the most commonly used and legally effective means of revocation (Section 70 of the Indian Succession Act, 1925). The new Will has to meet all the legal requirements of a valid Will.
• Burning, Tearing, or Destroying: A testator can revoke a Will by burning, tearing, or otherwise destroying it with the intent and purpose to revoke it by him or by another person in the presence and under the direction of the testator (Section 70 of the Indian Succession Act, 1925). Accidental destruction or destruction without the intent to revoke does not invalidate the Will.
• Marriage (for Wills made before marriage): After marriage, the testator becomes null and void with the will. The exceptions to this are wills executed in exercise of a power of appointment which would pass the property appointed to the testator's own heirs in default of the appointment (Section 69, Indian Succession Act, 1925).
• Codicil with Revocatory Clause: The testator can create a codicil (amendment of the present Will), which has to specifically include a clause that revokes the whole original Will. The codicil itself must be executed and attested with the same formalities as a Will.

Key Difference Between Will Deed And Gift Deed

Supreme Court Judgments on Unregistered Will Deed

A few case laws are:

Leela vs. Muruganantham

Here, the Supreme Court of India recently reaffirmed that just because a Will has been registered does not imply or even mean it is valid. Even an unregistered Will, like an unregistered Will, still has to have the execution of the Will proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. The Supreme Court accepted the High Court's decision dismissing the appeal, because there was insufficient evidence of the execution of the disputed unregistered Will, even though the Will was not registered, but in the context of suspicious circumstances surrounding it. Choudhury v Choudhury and Ors. (2020) 15 SCC 568. The court reinforced, that bona fides regarding genuineness and execution is what really matters, whether it has been registered or not.

Saroja vs. Santhil Kumar

In this case of Saroja vs. Santhil Kumar, the Supreme Court reaffirmed that an unregistered Will is validly executed in accordance with Section 63 of the Indian Succession Act, 1925. The court also stated that unregistered Will cannot be invalidated solely for being unregistered, but the propounder bears the initial burden of proving due execution and attestation. In this case, the court affirmed an earlier registered Will to a later unproven unregistered Will.

Sample Format Of Will Deed

Conclusion

Will Deed is an important legal document that allows people to have control over what happens to their self-acquired property after they are deceased. By identifying their wishes, testators can reduce confusion and disagreements with relatives afterwards, make every reasonable effort to transfer their assets smoothly, and provide for their relatives according to their wishes. Registration is optional and is purely an additional layer of legal security. Knowing the main components, legal rules, and how to create a Will Deed, and optionally register it, is part of the responsibility of estate planning.

FAQs

A few FAQs are:

Q1. What is a Will Deed and why is it important?

A Will Deed is a legal document where you specify how your assets should be distributed after your death, ensuring your wishes are followed. It's important for avoiding family disputes, ensuring smooth transfer of property, and providing for loved ones according to your desires.  

Q2. Who can create a Will Deed in India?

Any person of sound mind who is not a minor (above 18 years of age) can create a Will Deed in India, as per the Indian Succession Act, 1925. They must understand the nature of the act and the extent of their property.

Q3. What documents are typically required to register a Will Deed in Pune?

The original Will Deed, identification and address proof of the testator and two witnesses are usually required for registration. If the Will involves immovable property, relevant property documents might also be needed.

Q4. Can a Will Deed be changed or cancelled after it's made?

Yes, a testator can change or cancel their Will Deed at any time during their lifetime, provided they are of sound mind. This can be done by executing a new Will that explicitly revokes the previous one or by destroying the existing Will with the intention of revoking it (as per Section 70 of the Indian Succession Act, 1925). A codicil can also be used to make amendments.

Disclaimer: The information provided here is for general informational purposes only and should not be construed as legal advice. For personalized legal guidance, please consult with a qualified Civil lawyer.