No matter how depressing it may be, the Will is a very important document for every person with property, and taking care of it well ahead of time is the best decision to make. Throughout an individual’s life, all the investments they have made and the assets they have gathered over the years, it is very important to distribute them properly after their death. That can only be done by writing a Will and a Will Registration. After all, there is no certainty for life, and one must make sure that their loved ones do not face any monetary troubles after their death.
What is a Will?
A Will is a legal document in which an individual declares how they would like to distribute their assets among his family and loved ones after their death. It is written or authored by a living person, and he is known as the testator. He might also assign a person to carry out his wishes and desires expressed in the will, and they would be known as the executor. The laws and provisions that govern the distribution of property are codified under the Indian Succession Act of 1925, and it applies to every religion except Islam.
Two Main Types of Will
While a Will can be of many types, there are primarily two types.
- Underprivileged Will
This type of Will can be made by individuals who are not soldiers engaged in an expedition or warfare, or a sea mariner. The requirements to testify to the validity of underprivileged wills are:
- It must be a written document and carry the signature of the testator. The testator can also direct another person to sign the Will in their presence.
- Two or more witnesses, known as attesting witnesses, should attest to the document. They must also provide evidence that the attestor has signed in their presence.
- There is no such requirement of some unique form of attestation
- Privileged Will
Such a Will can be registered only for persons who are a soldier and engaged in an expedition or war, or a mariner out in the sea. The requirements for making a privileged Will is as follows:
- If the testator writes the Will in his own hand, then signature or attestation is not required.
- If someone else has written the document, then the signature of the testator is required even if it is not attested.
- If the Will is written by someone else and does not bear the signature of the testator, then it must be proved that the instructions are provided by the testator themself.
- If the testator has provided an oral will but has died before it is written down and executed, even then it is considered valid. However, an oral will may become null after a month, so a written one should be prepared by that time.
How to go through Will Registration in India?
Before progressing further, one must know that Will Registration is not mandatory. The Registration Act of 1908 ensures the registration of documents in India. In Section 18 of the Act, a list of documents for which registration is not required is provided, and Wills are included under this clause of Section 18.
This is how Will Registration can be done in India:
- Firstly, the testator has to carry the Will and visit the Sub-registrar’s office in the area of their residence or under whose jurisdiction the majority of the locality lies. When a testator personally presents themself before a government official along with the original Will, it enhances the reliability and trustworthiness of the will.
- The document will be carefully scrutinized by the registrar who will make sure that there is no legal error before the Will is registered.
- After the Will is examined thoroughly, a particular date is fixed for the Will registration in the Sub-registrar’s office.
- A nominal fee needs to be paid for the government registration and the amount varies from state to state.
- Two witnesses should accompany the testator to the Sub-Registrar’s office for attestation.
- It takes a week to collect the Registered copy of the Will after the process is completed.
What are the Basic Criterion for Writing a Will?
In the Indian Succession Act, Section 59 provides the basic criteria for a person to write a Will. They are:
- The person who makes the will should have the capacity for testament. According to the clause, the testator cannot be a minor, and a person who is deaf, blind, or dumb does have the capacity to understand or comprehend the position of testament.
- The testator or the person who makes the Will should have a sound disposition of mind, which means that they should not be suffering from any mental imbecility or idiocy, acute illness, dementia, etc.
- The testator should thoroughly know all the contents of the Will before signing and approving it.
- The individual should make the Will voluntarily and not under some undue influence, coercion, fraud, or importunity.
The Documents required for Will Registration
- 2 passport-sized photographs of the person writing the will or the testator should be provided.
- A certificate of the testator’s mental fitness should be certified by an MBBS/MD doctor.
- The Original Will, signed by the testator should be produced.
- Two witnesses for attestation should be present and their passport-sized photographs are required.
- The Photo proof of the testator should be provided.
- The Photo proof of the two attesting witnesses should be given.
- Proof of residence of the testator should be given.
- The pan cards of the testator and the witnesses should be provided.
Can Will Registration be carried out after the death of the testator?
Yes, Will Registration is possible even after the testator has died. However, it is possible only when the testator has signed the document and it is also attested by two witnesses. Also, the party who is taking up the Will registration process should also be able to produce the death certificate of the testator along with the original Will in the Sub-Registrar’s office.
