Should you register the Will, after the death of the maker of the Will? This question is often debated. What are the benefits of registering a Will? What do you lose if you don’t register a Will? It is an interesting question whose answer lies in the deep analysis of The Indian Succession Act, 1925 & The Registration Act, 1908.
Let’s assume a scenario where Mr. X passed away due to a cardiac arrest and left behind an unregistered Will under which his son is the executor thereof. The son now wants to get the same registered – can he do so? What are the benefits, if any?
There are two ways in which property may devolve upon the death of a person – a) Testamentary Succession i.e. one resulting from a legally executed testament of the deceased such as a Will, or b) Intestate Succession i.e. one resulting when there isn’t a legally executed testament of the deceased. In the second case, laws of succession come into play. The property then devolves on the legal heirs of the deceased in accordance with such laws.
A Will (testament) is not final until it has been granted probate by a Civil Court. To make a Will conclusive, a probate case has to be filed in Civil Court of competent jurisdiction. The said court would then issue a notice to all legal heirs of the deceased and invite objections, if any, before granting probate. The Court would conclude the genuineness of the Will by looking into facts that prove its due execution such as whether it was the last testament of the deceased, whether the deceased was competent to execute the said will, whether he had a sound mind and was not under duress while executing the Will, whether the Will has been duly attested by two persons who saw the executor sign the Will etc. (See Section 63 of the Indian Succession Act, 1925). Once the said Court has satisfied itself of the genuineness of the Will, it would grant probate i.e. the said Will be certified by the court and would be conclusive proof of its genuineness.
A Will may be either registered or unregistered. Registration of a Will is not mandatory (See Section 17 & 18 The Registration Act, 1908). Registered and unregistered Wills are both equally valid in law. The Supreme Court of India has held that the mere fact that a Will is not registered should not draw any adverse inference regarding its genuineness [See Ishwardeo Narain Singh v. Kamta Devi (AIR 1954 SC 280)].
Registration of a Will is however preferred. Registration proves that proper parties appeared before the registering officer at the time of registration. It also evidences that the registering officer enquired and satisfied himself of their identity. Only after having done so would he have registered the Will. Registration further guarantees that the said Will would be preserved and wouldn’t be tampered with. Thus, it makes it improbable for a Court to doubt its authenticity.
It is pertinent that, neither does non-registration impeaches Will’s genuineness nor registration of the Will is unchallengeable. A legal heir has the right to contest a Will, regardless of its registration. He may do so on the grounds of unsoundness of mind of the testator, influence or coercion of the testator, tampering of the Will etc. However, many grounds of challenge become invalid in case of a the registered Will.
In the example cited above, Mr. X either forgot to, or chose not to register his Will. Though valid in all respects, it being unregistered makes it susceptible to challenge. The son of Mr. X being the executor of the Will is entitled to present the same before the concerned registering officer for registration (See Section 40 of The Registration Act, 1908). In such a case, where the Will is being presented for registration by “any other person entitled to present it” shall be registered by the registering officer only if he is satisfied that that the said Will was:
A) Executed by the testator
B) That the testator has passed away
C) That the person presenting the Will is entitled to do so.
After having satisfied himself of the above-mentioned conditions, the registering officer, may in his discretion register the said Will. The registration of the Will after death of the testator would not only give it authenticity, but would also protect it from damage, tampering etc. The Will would remain open to challenge by other legal heirs albeit, its registration would render the same difficult.