How to make a registered Will? | Advocate J.S. Rohilla

How to Make a Registered Will in India: A Detailed Guide

Creating a Will is a crucial step in estate planning, ensuring that your assets are distributed according to your wishes after your death. While making a Will is not legally mandatory to register, registering it provides additional legal security and authenticity. Here’s a comprehensive guide on how to make a registered Will in India.

Understanding a Will

A Will is a legal document that expresses the intentions of a person (known as the testator) regarding the distribution of their assets and property after their death. It also includes instructions for the appointment of an executor, who is responsible for carrying out the wishes outlined in the Will.

Importance of Registering a Will

While a Will is legally valid even if it is not registered, registering a Will with the Sub-Registrar offers several advantages:

Prevents Tampering: A registered Will is kept in the safe custody of the registrar, reducing the risk of tampering, alteration, or loss.
Easier to Prove: If the Will is challenged in court, a registered Will carries more weight and is easier to prove.
Preservation: A registered Will is preserved in official records and can be accessed even if the original is lost or destroyed.

Steps to Make a Registered Will

1. Drafting the Will

The first step in making a registered Will is to draft it carefully. Here are the key components that should be included:

Title: The document should be titled “WILL” to clearly indicate its purpose.
Introduction: The Will should start with an introductory paragraph stating the name, age, address, and mental state of the testator. For example, “I, [Name], aged [age], residing at [address], being of sound mind and good health, hereby make this my last Will and testament.”
Declaration: Declare that this Will is being made voluntarily, without any coercion, and that it supersedes any previous Wills.
Details of Assets: Clearly list all assets, including movable and immovable property, bank accounts, investments, jewelry, etc. Describe the assets in detail to avoid any ambiguity.
Beneficiaries: Name the beneficiaries who will inherit the assets. Specify the share of each beneficiary and the particular assets they are entitled to. If minors are involved, appoint a guardian to manage their share until they come of age.
Appointment of Executor: Appoint an executor who will be responsible for administering the Will and ensuring that the assets are distributed as per the Will’s instructions.
Signature and Date: The testator must sign the Will in the presence of at least two witnesses. The date of signing should be mentioned clearly. Witnesses should also sign the Will, and they should not be beneficiaries under the Will.
Revocation Clause: Include a clause that revokes all previous Wills and codicils (amendments) made by the testator.

2. Selecting Witnesses

Witnesses play a crucial role in the validity of a Will. Here are the points to consider when selecting witnesses:

Number of Witnesses: At least two witnesses are required to attest the Will.
Eligibility: Witnesses must be adults (18 years or older) and should be of sound mind.
Independence: It is advisable to choose witnesses who are not beneficiaries under the Will to avoid any conflict of interest.
Understanding: Witnesses should understand that they are attesting the Will and that it reflects the testator’s true intentions.

3. Preparing for Registration

Before proceeding to the Sub-Registrar’s office for registration, ensure that:

The Will is properly drafted, with all necessary details, signatures, and witnesses.
You carry a proof of identity (like an Aadhaar card, passport, voter ID, etc.) and address proof.
You have the original Will and a few copies, as the Sub-Registrar may require them.

4. Registering the Will

The registration of a Will is done under the Indian Registration Act, 1908. The following steps are involved:

Visit the Sub-Registrar’s Office: The testator, along with the witnesses, must visit the Sub-Registrar’s office where the Will is to be registered. The office should be located in the jurisdiction where the testator resides or where the property mentioned in the Will is situated.
Present the Will: Submit the original Will along with the required identity and address proofs. The Sub-Registrar may ask questions to confirm the testator’s identity and ensure that the Will is being registered voluntarily.
Payment of Fees: Pay the registration fee, which varies by state but is generally nominal. Some states may also charge a nominal fee for the preservation of the Will.
Recording of the Will: The Sub-Registrar records the Will and provides a registration number. The Will is then scanned and entered into the official records.
Receipt and Copy: The testator will receive a receipt as proof of registration, and a certified copy of the registered Will can be obtained if needed. The original Will is returned to the testator.

5. Storing the Will

After registration, it is important to store the original Will safely:

Safe Custody: Keep the original Will in a safe place, like a bank locker or with a trusted person. Ensure that the executor or a close family member knows the location of the Will.
Informing the Executor: Inform the executor about their role and the location of the registered Will. This will facilitate the execution of the Will upon the testator’s death.

Important Points to Consider

Alterations and Codicils: If you wish to make changes to a registered Will, you can either create a new Will or add a codicil. A codicil is a supplement to the Will, altering specific provisions without rewriting the entire Will. The codicil must also be signed, witnessed, and can be registered like the original Will.
Revocation: A registered Will can be revoked at any time by creating a new Will or by making a clear declaration of revocation. The testator should ensure that the new Will or revocation is also registered to avoid legal complications.
Multiple Wills: It is advisable to have only one valid Will at any given time. If multiple Wills exist, the latest one (provided it is validly executed) will generally be considered the final Will, and the previous ones will be treated as revoked.

FAQs

Q1. Can a Will be challenged in court after registration?
Yes, a Will can still be challenged in court even if it is registered. Common grounds for challenging a Will include allegations of fraud, undue influence, lack of mental capacity, or improper execution. However, a registered Will is generally more difficult to challenge due to its official record.

Q2. Is it necessary to register a Will?
No, registering a Will is not mandatory in India. However, registering a Will offers additional legal protection and reduces the likelihood of disputes or forgery.

Q3. Can a registered Will be modified?
Yes, a registered Will can be modified through a codicil or by creating a new Will. The modifications should also be registered to ensure they are legally recognized.

Q4. Who can access a registered Will during the testator’s lifetime?
During the testator’s lifetime, the registered Will remains confidential, and only the testator has access to it. After the testator’s death, the executor or beneficiaries can obtain a copy from the Sub-Registrar’s office.

Q5. What happens if the original registered Will is lost?
If the original registered Will is lost or destroyed, a certified copy can be obtained from the Sub-Registrar’s office where the Will was registered. This certified copy holds the same legal validity as the original.

Q6. Can a Will be registered after the death of the testator?
No, a Will cannot be registered after the death of the testator. However, the Will can still be probated, where the court confirms its validity and the executor is granted the authority to administer the estate.

Q7. What is the difference between a registered and an unregistered Will?
A registered Will is recorded with the Sub-Registrar and carries additional legal weight, making it harder to dispute. An unregistered Will is valid if it meets all legal requirements but lacks the official recognition and added security of registration.

Q8. Can a handwritten Will be registered?
Yes, a handwritten Will, if properly drafted and signed by the testator and witnesses, can be registered. The Will should clearly express the testator’s intentions and meet all legal formalities.

Conclusion

Making a registered Will is an essential step in ensuring that your assets are distributed according to your wishes after your death. While the process of drafting a Will is relatively straightforward, registering it provides an extra layer of legal protection, making it more difficult to contest and ensuring its preservation in official records. By carefully drafting the Will, choosing trustworthy witnesses, and following the proper registration process, you can secure your legacy and provide peace of mind for yourself and your loved ones.

Taking the time to make a registered Will can prevent future disputes among your heirs and ensure that your estate is handled according to your wishes. This legal document, once registered, not only reflects your intentions but also carries the weight of law, making it a vital part of your estate planning.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304