Reg­is­tra­tion of will af­ter death pos­si­ble

A le­ga­tee or ben­e­fi­ciary can present a will to a reg­is­trar af­ter the demise of a tes­ta­tor as per the In­dian Reg­is­tra­tion Act 1908

HT Estates - - HTESTATES - Sunil Tyagi

El­derly peo­ple are usu­ally con­cerned about the in­her­i­tance and dis­tri­bu­tion of their proper t i e s amongst t heir heirs and loved ones. A will is the safest means to en­sure t h at f a m i l y m e m b e r s g e t their right­ful share of prop­erty af­ter a per­son’s death. Writ­ing a will elim­i­nates chances of le­gal has­sles and dis­putes among heirs over the prop­erty left be­hind by the de­ceased. A will is a doc­u­ment that states the in­ten­tion of the tes­ta­tor re­gard­ing the man­ner in which his as­sets or prop­er­ties are to be dis­trib­uted post his demise.

In In­dia, tes­ta­men­tary suc­ces­sion is gover ned by the In­dian Suc­ces­sion Act, 1925. For a smooth dis­tri­bu­tion of the prop­er­ties of the de­ceased, it is im­por­tant to bear in mind the le­gal­i­ties that en­sure va­lid­ity of a will. The In­dian Suc­ces­sion Act, 1925 pre­scribes the man­ner of ex­e­cut­ing a valid will.

For a will to be valid, the tes­ta­tor must be a ma­jor (ie above 18 years), of sound mind and ca­pa­ble of ex­er­cis­ing his or her free will and judge­ment. One must clearly de­scribe the prop­er­ties to be be­queathed and the per­sons who stand to in­herit them. It is de­sir­able that the will be read out to the tes­ta­tor (in case he is un­able to read and write) in or­der to con­firm that his in­ten­tions are ac­cu­rately cap­tured in the will.

The tes­ta­tor must ex­e­cute and sign his will in the pres­ence of at least two wit­nesses, who in turn must at­test the will in the pres­ence of the tes­ta­tor. It is also de­sir­able to ap­point an ex­ecu­tor for one’s will (who can be a trusted mem­ber of the fam­ily or even a non-fam­ily mem­ber). The role of an ex­ecu­tor is to es­sen­tially over­see the process of dis­tri­bu­tion of the tes­ta­tor’s as­sets amongst his or her ben­e­fi­cia­ries.

Un­der the In­dian Stamp Act, 1899, no stamp duty is levi­able and payable on a will – ir­re­spec­tive of the value of the im­move­able prop­er­ties be­ing be­queathed un­der the will. Hence, a will can even be made on plain pa­per. It is not manda­tory to reg­is­ter a will as per the In­dian Reg­is­tra­tion Act, 1908. Even an un­reg­is­tered will is a valid le­gal in­stru­ment if it has been duly ex­e­cuted as per the re­quire­ments un­der the In­dian Suc­ces­sion Act, 1925.

How­ever, it would be wiser to duly reg­is­ter the will in or­der to pre­serve an au­then­tic record and curb the chances of fraud­u­lent wills. The In­dian Reg­is­tra­tion Act, 1908, has pro­vi­sions for get­ting the will reg­is­tered even af­ter the death of the tes­ta­tor.

Even af­ter the tes­ta­tor’s demise a will can be pre­sented to the con­cerned reg­is­trar or sub-reg­is­trar for reg­is­tra­tion by the ex­ecu­tor ap­pointed un­der the will or a le­ga­tee/ben­e­fi­ciary un­der the will. The reg­is­trar or sub-reg­is­trar can then reg­is­ter the will if they are sat­is­fied that the will was duly ex­e­cuted by the tes­ta­tor and the per­son who are pre­sent­ing it for reg­is­tra­tion are en­ti­tled to present the same (be­ing the ex­ecu­tor as well as the le­ga­tee).

Though it is ad­vis­able to get the will reg­is­tered dur­ing one’s life­time, the reg­is­tra­tion of a will af­ter the death of the tes­ta­tor can be done with­out com­pli­cat­ing things.

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