Will Registration in India: Procedure, Advantages & Disadvantages

Last Updated at: June 08, 2020
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Will Registration in India, Procedure for Will Registration in India
Will is an important legal document in which the testator mentions about the distribution of the assets. However, it is not mandatory in India under section 17 of the Registration Act, 1908 (Act), and according to section 18 (e). There is no stamp duty payable on Will registration.

 

When a person makes a will, he/ she is declaring how the assets and properties are disbursed and to whom after his/ her death. Of course, the property and assets can’t be ancestral, but only self-owned.

Registration of will is not mandatory, as under the Indian Succession Act, 1925, it’s considered to be a personal choice of the testator. However, it’s advisable to register it, if its contents are to be abided by after the person’s death. In other words, the will’s validity or genuineness will be a suspect and difficult to prove if it’s not registered.

Procedure for will registration

Having understood this, let’s look at the procedure for registering a will.

Drafting your Will with vakilsearch

  1. Registration of the will happens at the office of the sub-registrar. One must submit address proof, photographs and the witnesses to sign the will. The witnesses have to bring their photographs and address proofs as well. 
  2. Once the will is drafted, a witness should accompany the testator to the registrar for registration.
  3. Once it’s registered, it can be kept in safe custody with the lawyer or in a bank locker. In addition, the registrars have the authority to keep wills in the deposit. If you select a registrar to safeguard your will, you must apply the will in a sealed cover. After confirming the identity of the testator or the authorized person, the register will keep on the will.
  4. If you want to withdraw the will from the registrar, you can personally send your request or do it through an authorized agent. If the registrar is satisfied, they will be delivered to the person.
  5. In case you want to revise or modify certain clauses in your will, it can be done through Codicil, a document enlisting the amended parts of the will. It is then attested by the testator in the presence of two witnesses and kept along with the will with the registrar.
  6. If the person whose will is with the Registrar dies, any person may apply to the Registrar for the opening of the cover containing that will. However, the registrar will only open the cover after confirming that the testator is dead. They open the cover in the applicant’s presence and also provide a copy of the will to them. The original will remain in the Registrar’s custody until a court orders them to produce the original will.

Advantages of Registering a Will

a. The will cannot be tampered, destroyed, lost or stolen.

b. The will is kept in safe custody by the registrar.

c. No person can access or examine the will without the express permission in writing of the testator until his/ her death.

d. If a registered will is uncontested, it may be possible to get the leasehold property mutated in the name of the legal heirs without obtaining a probate of the will.

Disadvantages of Registering a Will

a. Revocation of a registered will is cumbersome when compared to the revocation of an unregistered will.

b. If a registered will is revoked, the subsequent will made by the person should also be registered.

Why is it recommended to register a Will?

It is true that not registering a will doesn’t mean the will isn’t genuine. The unregistered will doesn’t stop any legal heir to fight for the same. Then why is it recommended to register a will?

The government does not consider a will has the only final legal document for distributing any deceased person’s estate or other assets. After the will owner’s demise, the executor named in the will applies for the testamentary proceedings in the civil court. They must apply for the same within two years from the death of the will owner. The executor must also submit a proof confirming will testator’s death. They should also confirm that this the last will and it is a valid testament of the deceased.

The court issues a notice to the testator’s legal heirs to file objections if any to the granting of probate or citation publication in the local newspaper. The court also confirms if the will submitted is the actual final will of the deceased person. It also confirms whether the testator duly executed and attested the will according to the law. Also, it collects proof on whether the testator was of sound mind when they created a will. Finally, the court issues a letter of probate or a letter of administration, mentioning the necessary points are satisfied.

One can challenge the will by claiming the testator was mentally unsound while making the will. Also can claim that the will was altered after being signed. During such times, a registered will helps the court by being a piece of legal evidence against these allegations. One cannot destroy, steal, mutilate or tamper with the registered will. Hence, the court will not doubt the will’s authenticity. This helps the asset distribution process to move peacefully without chaos or confusion.

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Will Registration in India: Procedure, Advantages & Disadvantages

19684
Will is an important legal document in which the testator mentions about the distribution of the assets. However, it is not mandatory in India under section 17 of the Registration Act, 1908 (Act), and according to section 18 (e). There is no stamp duty payable on Will registration.

 

When a person makes a will, he/ she is declaring how the assets and properties are disbursed and to whom after his/ her death. Of course, the property and assets can’t be ancestral, but only self-owned.

Registration of will is not mandatory, as under the Indian Succession Act, 1925, it’s considered to be a personal choice of the testator. However, it’s advisable to register it, if its contents are to be abided by after the person’s death. In other words, the will’s validity or genuineness will be a suspect and difficult to prove if it’s not registered.

Procedure for will registration

Having understood this, let’s look at the procedure for registering a will.

Drafting your Will with vakilsearch

  1. Registration of the will happens at the office of the sub-registrar. One must submit address proof, photographs and the witnesses to sign the will. The witnesses have to bring their photographs and address proofs as well. 
  2. Once the will is drafted, a witness should accompany the testator to the registrar for registration.
  3. Once it’s registered, it can be kept in safe custody with the lawyer or in a bank locker. In addition, the registrars have the authority to keep wills in the deposit. If you select a registrar to safeguard your will, you must apply the will in a sealed cover. After confirming the identity of the testator or the authorized person, the register will keep on the will.
  4. If you want to withdraw the will from the registrar, you can personally send your request or do it through an authorized agent. If the registrar is satisfied, they will be delivered to the person.
  5. In case you want to revise or modify certain clauses in your will, it can be done through Codicil, a document enlisting the amended parts of the will. It is then attested by the testator in the presence of two witnesses and kept along with the will with the registrar.
  6. If the person whose will is with the Registrar dies, any person may apply to the Registrar for the opening of the cover containing that will. However, the registrar will only open the cover after confirming that the testator is dead. They open the cover in the applicant’s presence and also provide a copy of the will to them. The original will remain in the Registrar’s custody until a court orders them to produce the original will.

Advantages of Registering a Will

a. The will cannot be tampered, destroyed, lost or stolen.

b. The will is kept in safe custody by the registrar.

c. No person can access or examine the will without the express permission in writing of the testator until his/ her death.

d. If a registered will is uncontested, it may be possible to get the leasehold property mutated in the name of the legal heirs without obtaining a probate of the will.

Disadvantages of Registering a Will

a. Revocation of a registered will is cumbersome when compared to the revocation of an unregistered will.

b. If a registered will is revoked, the subsequent will made by the person should also be registered.

Why is it recommended to register a Will?

It is true that not registering a will doesn’t mean the will isn’t genuine. The unregistered will doesn’t stop any legal heir to fight for the same. Then why is it recommended to register a will?

The government does not consider a will has the only final legal document for distributing any deceased person’s estate or other assets. After the will owner’s demise, the executor named in the will applies for the testamentary proceedings in the civil court. They must apply for the same within two years from the death of the will owner. The executor must also submit a proof confirming will testator’s death. They should also confirm that this the last will and it is a valid testament of the deceased.

The court issues a notice to the testator’s legal heirs to file objections if any to the granting of probate or citation publication in the local newspaper. The court also confirms if the will submitted is the actual final will of the deceased person. It also confirms whether the testator duly executed and attested the will according to the law. Also, it collects proof on whether the testator was of sound mind when they created a will. Finally, the court issues a letter of probate or a letter of administration, mentioning the necessary points are satisfied.

One can challenge the will by claiming the testator was mentally unsound while making the will. Also can claim that the will was altered after being signed. During such times, a registered will helps the court by being a piece of legal evidence against these allegations. One cannot destroy, steal, mutilate or tamper with the registered will. Hence, the court will not doubt the will’s authenticity. This helps the asset distribution process to move peacefully without chaos or confusion.

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A lawyer with 14 years' experience, Vikram has worked with several well-known corporate law firms before joining Vakilsearch.