The Indian laws enable any person to lay down the mode of distribution of his/her property to relatives and family members after their death through a written document known as a Will. Will registration is done is to give legal recognition to the document and use it in legal proceedings.
What is a Will?
A Will is defined as a legal document that lays down the dying testament of a person regarding the way in which their property must be distributed and managed. The idea behind creating a Will is establishing the manner of treating the assets owned by the person after their death.
In simple terms, a Will is used to establish the rights of a deceased person’s kin over the property left behind by him/her. A Will can be made only for the self-acquired property of the person and not for any ancestral property in which the person has a claim.
Important Terms and Definitions Relating to Will in India
- Testator- A person who is making the will.
- Codicil- An instrument made in relation to a Will that explains, alters or adds to Will’s dispositions and is deemed to be a part of the Will.
- Probate- A copy of the Will certified under the seal of a competent court.
- Executor- The legal representative for all purposes of a deceased person and all the property of testator vests in him.
The procedure of Will Registration in India
Though will registration is not mandatory under the Indian registration laws, it is recommended by legal experts to get the Will registration done. A registered Will can be used as evidence in case of dispute over claim on the deceased person’s property.
The following steps are involved in Will registration in India:
- The will must be registered with the Sub-Registrar or Registrar of the district court under whose jurisdiction the property or a major part of the property lies.
- The requisite stamp duty must be paid for the registration of the Will.
- After drafting of the Will, two witnesses must accompany the testator (person making the will) to the Registrar for Will registration and attest the will.
- In case the testator wishes to change or withdraw a Will from the Registrar, it can be done by applying personally or through an agent authorised on the person’s behalf. If satisfied, the Registrar delivers the Will.
- After the death of the testator, any person can apply to the Registrar for opening the Will. The Registrar then opens the cover in the presence of the applicant and provides a copy of the Will.
- The original Will remains in the custody of the Registrar until a competent court order for producing the Will before it.
Will Registration under Different Religions in India
A Will is not revoked upon the marriage of a Hindu (including Sikh, Jain or Buddhist) individual in India. Under the Hindu laws, the executor of the Will may also become a witness at the time of Will registration.
In case of Parsi and Christian Wills, probate is mandatory when the Will is executed in the cities of Mumbai, Calcutta or Chennai if the Will pertains to immovable property in these cities. Unlike the Hindu laws, the will of a person stands revoked after the marriage of a Parsi or Christian testator.
Under the Muslim Personal Law, a Muslim testator can make a Will orally or in writing and no form is required for such writing. However, it is preferable to have a written Will, In India, a person who is a major and of sound mind can make a Will and he can dispose of all or any part of his property by Will. However, there are two basic restrictions on the power of a Muslim testator to make a Will:
- A Muslim can bequeath only one-third of his property by Will.
- The heirs of a Muslim testator may consent to bequest in excess of one-third of the testator’s assets.
- A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void if a Muslim testator, after making the Will, becomes unsound of mind and continues to be so till his death. Similarly, a bequest which is contingent, or conditional or in the future or is alternative to another, pre-existing one, would be void. If an executor is appointed by a Muslim testator, the powers and duties of the executor will be in accordance with the provisions of the Indian Succession Act.
LetsComply can assist you with the drafting and registration of your Will under any Indian personal laws. You can talk to our family law experts by calling us at +91-9717070500 or sending an email at firstname.lastname@example.org.