The Supreme Court of India has held that an unregistered Will is valid and enforceable in law. However, unregistered Wills are more likely to be challenged in court, so it is generally advisable to have your Will registered with the office of the Sub-Registrar.
An unregistered will is a will that has not been registered with the Sub-Registrar’s office. In India, registration of a will is not mandatory, but it is advisable to do so as it can help to avoid disputes and delays in the probate process.
The Supreme Court of India has held in several cases that an unregistered will is valid and enforceable in law. In the case of Saroja v. Santhil Kumar (2010), the Supreme Court held that an unregistered will could be proved by leading evidence of its execution and due attestation. The Court also held that a registered will could be revoked by an unregistered will, provided that the latter will was executed in accordance with the law.
In another case, Surinder Pal Sharma v. Surjit Kaur (2019), the Supreme Court held that an unregistered will could be proved by leading evidence of its possession and custody by the testator (the person who made the will). The Court also held that the absence of registration did not make the will invalid.
The Supreme Court’s judgments on unregistered wills have established that they are valid and enforceable in law, provided that they are duly executed and attested. However, it is important to note that unregistered wills are more difficult to prove than registered wills. In the event of a dispute, the court will need to be convinced of the authenticity of the unregistered will.
Did you Know?In a landmark judgment in 2019, the Supreme Court of India held that an unregistered Will is valid and enforceable in law. The Court observed that the Registration Act, 1908, does not require Wills to be registered. The Court also noted that the Indian Succession Act, 1925, does not specify any particular form for a Will, and that a Will can be written on any piece of paper. The Supreme Court’s judgment is a significant one, as it provides clarity on the validity of unregistered Wills. It also means that people can now make Wills without having to go through the process of registration, which can be time-consuming and expensive. |
Advantages and Disadvantages of Unregistered Wills
Advantages:
- They are cheaper and easier to make than registered wills.
- Unregistered wills can be kept confidential.
- Unregistered wills can be revoked more easily than registered wills.
Disadvantages:
- They are more difficult to prove than registered wills.
- They are more likely to be disputed.
- Unregistered wills may not be enforceable in foreign jurisdictions.
Conclusion
They are valid and enforceable in law in India. However, it is important to be aware of the disadvantages of unregistered wills before making one. It is advisable to consult with a lawyer to ensure that your will is properly executed and attested.
- Make sure that your will is signed and dated by you in the presence of two witnesses.
- The witnesses should also sign and date the will in your presence.
- Keep your will in a safe place and inform someone you trust about its existence.
- Consider getting your will registered with the Sub-Registrar’s office. This is not mandatory, but it can help to avoid disputes and delays in the probate process.
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Frequently Asked Questions
How can one challenge an unregistered will?
The appellant must request the revocation of the probate in order to contest the legality of an unregistered will after it has been granted probate. The appellant cannot contest the respondent's title in any other actions without requesting the probate to be revoked.
Is a will valid if not registered?
In India, registering a will is not required; unregistered wills are nonetheless regarded as legitimate. It is advised that you do this, nevertheless, as it makes the will seem more genuine.
Can property be sold on the basis of unregistered will?
Yes, after the property is transferred into your name, you are free to do so. The Will does not have to be registered. Equal weight is likewise given to the unregistered will as to the registered will. If you have a NOC from another of your late wife's lawful heirs, you can move forward with the sale or transfer of the property.
What is the latest Supreme Court judgement on unregistered agreement to sell?
The Court underlined that Section 49 remains unchanged since it was added in 1929. In light of this, the Supreme Court determined that the unregistered Agreement, the document in question, would be acceptable as evidence in a claim for particular performance.
What is the latest Judgement on unregistered will?
The Supreme Court of India upheld the legality and enforceability of unregistered wills in a historic decision in 2019. The ruling clarified that the Registration Act of 1908 does not require wills to be registered, dispelling the myth that registration is required.
What are the consequences of non registration of the will?
Non-registration of a will can lead to several issues, including potential legal disputes among heirs due to questions about the will's authenticity. The will must undergo a probate process in court, which can be time-consuming and costly. Additionally, the will can be more easily challenged on grounds of forgery or coercion, and the absence of a public record can make it harder to establish the will's existence and terms.
Is it necessary to prove registered will?
However, it is recommended that you register your will in order to overcome any questions over its inventiveness. A Will does not become inviolable just because it is registered. There is always the possibility of contesting it in court. Furthermore, the registered will need not be the last testament left by the deceased.
How long a will is valid after death?
In other words, a will is enforceable whether it is registered or not. When a will becomes effective, there is no time limit. A will can be contested for up to 12 years following the testator's passing.
How to prove a will is valid?
In general, it must be shown that the testator signed the Will of his own free will, that he was in a sound mental state at the time of execution, and that he was aware of the nature and effect of the Will under Section 63 of the Succession Act, 1925
