Registration of Wills

Introduction

One of the
modes of succession is through a will, also known as testamentary
succession. A will is a document which contains the last wishes of a
person as regards the manner and mode of disposition of his property. The
making of wills in India is governed by the provisions of the Indian
Succession Act, 1925 (“the Act”). While intestate succession is
different for different religions, the law governing the making of wills is the
same for people of all religions except Muslims. The Act does not apply to
wills made by Muslims as they are governed by their respective Shariat Laws.
Succession, whether through wills or otherwise, always has some interesting
issues, one such being whether a will should be registered and if yes, does it
have any special advantages?

Meaning

As the
term `will’ indicates, it signifies a wish, desire, choice, etc., of a person.
A person expresses his will as regards the disposition of his property. The Act
defines a will to mean “the legal declaration of the intention of the
testator with respect to his property which he desires to be carried into effect
after his death”. The General Clauses Act, 1897, defines the term will to
include “a codicil and every writing making a voluntary posthumous disposition
of property”. The Indian Penal Code defines a will to denote any testamentary
document.

One of the
important facets of a will is that the intention manifests only after the
testator’s (person making the will) death, i.e., it is a posthumous disposition
of his property. Till the testator is alive, the will has no force. He can
dispose of all his properties in a manner contrary to that stated in the will
and such action would be totally valid. E.g., A makes a will bequeathing all
his properties to his brother. However, during his lifetime itself, he
transfers all his properties to his son with the effect that at the time of his
death he is left with no assets. Such action of the testator cannot be
challenged by his brother on the ground that he was bound to follow the will
since the will would take effect only after the death of the testator. In this
case as the property bequeathed would not be in existence, the bequest would
fail.

Disputes

Making a
will does not mean a blanket insurance against succession disputes. A will may
be challenged on various counts. Some of the common grounds on which a will is
challenged include:

(a)   The will does not comply with
the rules laid down under the Indian Succession Act in respect of a valid will.

(b)   The will is not genuine,
i.e., it has been obtained by fraud, forgery, undue influence, coercion, under
duress, etc.

From time
immemorial, wills have been and will continue to be a source of family
disputes. This is true not just in India but also in the west, e.g., USA,
England, etc. It is often said that “where there is a will, there is a
legal dispute” or that “where there is a will, there is a disgruntled relative”.
In order that these legal disputes are minimised and the claims by disgruntled
relatives set aside, it is necessary that the will is a valid will and one
which can stand scrutiny in a court of law. One such precaution which is often
suggested to reduce disputes is to register the will.

Registration of a will

The
testator of a will or the executor, after him, may register the will with the
Registrar of Sub-Assurances under the Registration Act, 1908. However, it is
not compulsory to register a will. Even if a will bequeaths immovable property,
registration is not compulsory. In fact, section 17(1) of the Registration Act
which prescribes those instruments which require compulsory registration,
expressly states that only non-testamentary instruments are required to be
mandatorily registered.

Procedure

The procedure
for registering a will is as follows:

(a)   The will is to be registered with the
appropriate Registrar of Sub-Assurances. 

(b)   In case a person other than the testator
presents a will for registration, then such other person must satisfy the Registrar
that the will was executed by the testator who has since expired, and that the
person registering the will is authorised to do so.

(c)   The other procedures which are applicable for
the registration of any document would equally apply to a will also. For
instance, after the amendment in the Registration Act inserted in 2001, every
document which is to be registered requires the person presenting the document
to affix his passport size photograph and also his finger-print. It may be
noted that as is the case with any will, no stamp duty is payable even if it is
registered. There is no difference on this count.

(d)   Persons who are exempted from personally
appearing before the Registrar, include:

(i)    A person who is unable to come without risk
or serious inconvenience due to bodily infirmity;

(ii)    A person in jail under civil or criminal
process;

(iii)   Persons who are entitled to exemption under
law from personal attendance in Court. 

In such
cases, the Registrar shall either himself go to the house of such person or the
jail where the person is confined and examine him or issue a commission for his
examination.

A testator may also deposit
his will for safekeeping with the Registrar by depositing it in a sealed
envelope which contains the name of the testator and a statement about the
nature of the document. Once the registrar receives the cover he would enter the
name of the testator in his register book along with the date of presentation
and the receipt. Thereafter, he is required to place the envelope in his
fireproof safe. Such a deposited will can be withdrawn by the testator or by
his duly authorised agent. On his death, an application can be made to the
registrar to open the cover and cause the contents of the will to be copied
into his register book.

Mulla
in his commentary on the Indian Registration Act, 10^th
Edition, Butterworths, states that the applicant need not be a claimant
or executor under the will and may be anyone who is prepared to pay the
requisite copying and other fees. Hence, the will would become a public
document open to inspection. This is one disadvantage of registering a will.

Another
option one may consider to registration is notarising the will since even this
could help prove that the will is not forged.

Benefits of registration

Registration
of a will by the testator prior to his demise raises a strong presumption in
favour of the genuineness of the will but the same cannot be said of a will
which is registered after his death, or without his knowledge– Guru Dutt
Singh vs. Durga Devi, AIR 1966 J&K 75.  Registration of a will helps in establishing
the date of execution or signing beyond a doubt. Also, registration establishes
the genuineness of identity of the testator and the witnesses. However, the
Delhi High Court in Thakur Dass Virmani vs. Raj Minocha AIR 2000 Del 234
has held that where the will was registered and the signatures of the testator
were similar to her regular signatures, due execution of the will may be
presumed. 

In Rabindra
Nath Mukherjee vs. Panchanan Banerjee by LRs(1954) 4 SCC 459 it has
been held that in a case where a will is registered and the Sub-Registrar
certifies that the same had been read over to the executor who, on doing so,
admitted the contents, the fact that the witnesses to the documents are
interested lost significance. The documents at hand were registered and it was on
record that the Sub-Registrar had explained the contents to the testator.
Hence, the Supreme Court did not find this as suspicious on the facts of the
case.

What registration does not prove

A will
need not be compulsorily registered; the fact that a will is not registered is
not a circumstance against the genuineness – Basaut vs. Brij Raj, A.I.R.
1935 (PC) 132.

Merely
because a will has not been registered by the testator, an adverse inference
cannot be drawn that the will is not genuine – Ishwardeo Narain Singh vs.
Kamata Devi AIR 1954 SC 280. In this case, the Supreme Court held that
there was nothing in law which required the registration of a will and wills
are in a majority of cases were not registered at all. To draw any inference
against the genuineness of the will merely on the ground of its
non-registration appeared to be wholly unwarranted.

Again in Rani
Purnima Devi vs. Kumar Khagendra Narayan Dev, 1962 SCR Supl. (3) 195,
the Apex Court held as follows while examining the genuineness of a registered
will:

“There is no doubt that if a will has been registered, that is a
circumstance which may, having regard to the circumstances, prove its
genuineness. But the mere fact that a will is registered will not by
itself be sufficient to dispel all suspicion regarding it where suspicion
exists, without submitting the evidence of registration to a close
examination. If the evidence as to registration on a close examination reveals
that the registration was made in such a manner that it was brought home to the
testator that the document of which he was admitting execution was a will
disposing of his property and thereafter he admitted its execution and signed
it in token thereof, the registration will dispel the doubt as to the
genuineness of the will. But if the evidence as to registration shows that
it was done in a perfunctory manner, that the officer registering the will
did not read it over to the testator or did not bring home to him that he was
admitting the execution of a will or did not satisfy himself in some other way
(as, for example, by seeing the testator reading the will) that the testator
knew that it was a will the execution of which he was admitting, the fact that
the will was registered would not be of much value. It is not unknown that
registration may take place without the executant really knowing what he was
registering. Law reports are full of cases in which registered wills have
not been acted upon (see’ for example, Vellasaway Sarvai v. L. Sivaraman
Servai, (1) Surendra Nath Lahiri v. Jnanendra Nath Lahiri ( 2 )and Girji Datt
Singh v. Gangotri Datt Singh)(3). Therefore, the mere fact of registration
may not by itself be enough to dispel all suspicion that may attach to the
execution and attestation of a will; though the fact that there has been
registration would be an important circumstance in favour of the will being
genuine if the evidence as to registration establishes that the testator
admitted the execution of the will after knowing that it was a will the
execution of which he was admitting.”

Registration
of a will would go a step in proving whether or not the will is the last will
of the deceased since the date of the execution of the will would get
established beyond a doubt. 

A will,
which requires probate, is of no effect unless probated. The mere fact of its
registration makes no difference. Thus, a Court when called upon to probate a
will would look into the fact of its registration only as one of the several
circumstances when deciding whether to grant probate or not. 

The registration of will is not the proof of the testamentary capacity
of the testator, as the Sub-Registrar is not required to make an enquiry about
the capacity of the testator.

Can a registered will be superseded by an
unregistered will?

The
question whether a registered Will can be superseded by an unregistered will
had also been a matter of consideration before the court of law, wherein the
Delhi High Court has held that there is no law that a registered will cannot be
superseded by an unregistered will. A will does not operate in praesenti.
Its operation is contingent upon the death of the testator. Till alive, the
testator can always revoke the will because a will is an instrument of trust by
a living person addressed in rem to be operative after his death. A will, be it
registered or be it unregistered can be revoked by defacing the will,
destroying the will or otherwise superseding the same. – Sunil Anand vs.
Rajiv Anand, 2008(103) DRJ 165.The following passage from the judgment
is relevant:

“….the
will Ex.PW-1 is a registered will. Secondly, there is no law that a
registered will cannot be superseded by an unregistered will.
A will does not operate in praesenti. Its operation is contingent upon
the death of the executor. A will creates no right, title or interest when it
is executed. The right is created under a will on the death of the testator.
Till alive, the testator can always revoke the will because a will is an
instrument of trust by a living person addressed in rem to be operative after
his death. A will, be it registered or be it unregistered can be revoked
by defacing the will, destroying the will or otherwise superseding
the same.”

Again, in Amara
Venkata Subbaiah and Sons and ors. vs. Shaik Hussain Bi, 2008(5)ALD547,
the Andhra Pradesh High Court has held that the law was well settled that even
an unregistered codicil in relation to a registered will, would have to be read
as amending the will. Thus, this also supports the view that a registered will
can be superseded by an unregistered will.

Conclusion

While
registration of a will may not be a panacea for the ills of probate disputes,
it certainly is a strong anti-biotic as compared to an unregistered will! It
helps dispel the element of doubt associated with a will.