What is a Will? - An Introduction
It is a fundamental characteristic of a property that it exists with an owner. In the event of a person’s death, his/her property has to vest into some other entity i.e. succession of property.
A will is a legal document declaring the voluntary posthumous disposition of property. Indian Succession Act governs the disposition of will in India.
Will Registration India
The Sub-Registrar office, set up by the State governments, is where registration is completed by the Registration Act. The registration of a will is subject to stamp duty. A witness should go with the testator to the Registrar to register the will after it has been drafted. Following the execution, the registered will be placed in a banker's or attorney's secure custody. When submitting a will to the Registrar, the testator or a lawfully authorized representative shall be sealed. The Registrar would hold the will's cover after verifying the testator's identity or that of the person designated by the testator.
A testator may apply directly to the Registrar or through a duly authorized representative if they would like to amend or remove a will. Anyone could request the Registrar to have the cover containing the testator's will open in the event of their death. In this situation, the Registrar may open the cover in front of the applicant and provide them with a copy. The original Will, however, would remain in the Registrar's possession until a court order was issued for it to be produced.
Types of Wills in India
1. Privileged Will
A privileged will is created by a soldier who is on an expedition or actual warfare, an airman who is doing so, or any mariner who is at sea. For such individuals to be able to dispose of the property by a will, they must reach the age of eighteen.
2. Unprivileged Will
Those who do not fit the definition of a soldier, airman, or mariner will be covered by an unprivileged will.
3. Conditional Will
A conditional will is one whose validity is dependent on a specific event occurring or a condition being met. A property's bequest by the will depends.
4. Concurrent Will
Only one individual writes concurrent wills, but they cover a wide range of topics about the property's disposition. The disposal of mobile property may be handled by one will, and the other will handle the disposal of immovable property.
5. Mutual Wills
Mutual wills are wills made by two or more people with the intention of benefiting each other in return. To put it simply, it is an agreement made by two or more people to divide their property among themselves or any third party in a specific way that the parties have decided upon.
Key Components of a Will Registration
1. Pith of the substance
Information about the testator (such as name and residence), assets, properties, instructions, a statement that the testator is acting freely when drafting or executing the will, beneficiary details, share distribution, etc., must all be included in the legal declaration. The testator's intention must be unmistakable and evident from the reading of the Will itself, even if legalese or technical terms are not required when writing the declaration down.
2. The ability of the testator
A person can execute a will as long as they know the nominations and the outcome of their actions. Anyone of sound mind who is not a minor may use a will to dispose of their property as per Section 59 of the Act. Furthermore, a person who is normally mad may create a will while he is still of sound mind, according to the Act's requirements. Additionally, as long as they are conscious of their activities, people who are blind, deaf, or dumb can still make wills, except when intoxicated or unwell and unaware of what conduct they are engaged in.
3. Voluntary or free will
The testator must write their will willingly and entirely of their own free will. Any will acquired through deception, coercion, or opportunity is null and void.
4. Attested by two or more witnesses and signed by the testator
A will must be signed by the testator or have a mark attached to it for it enforceable. Additionally, the will must be attested by two or more witnesses, each of whom must have seen the testator sign the will or attach their mark.
What Points Does One Need to Consider While Drafting a Will?
A will is not required to be voluminous, or enclosed with scrumptious legal jargon. It should be concise and shall contain an accurate account of the properties that are to be included in the will.
Eligibility for Will Registration
A Will can be executed by a person as long as he/she understands the consequences of their actions. As per Section 59 of the Act, every person of sound mind not being a minor may dispose of his property by Will. Moreover, as per the provisions of the Act, a person who is ordinarily of unsound mind may make a Will during an interval in which he is of sound mind. Furthermore, people who are dumb, deaf, or blind are not incapacitated from making a Will as long as they are aware of their actions except people who are under intoxication or suffering from an illness wherein, they are not aware as to what they doing.
Advantages and Disadvantages of Will Registration
Advantages
1. Having a registered will have the following benefits.
2. Will cannot be destroyed, damaged, lost, or stolen.
3. The Registrar has Will in safe custody.
4. Until the testator's death, no one may access or review the Will without the testator's express written consent.
5. It is possible to have leasehold property transformed in the name of the legal heirs without a will if a registered will is uncontested.
Disadvantages
1. Compared to revocation of an unregistered will, revocation of a registered will is a laborious procedure.
2. Any further will that the individual makes should likewise be a registered will if a registered will is revoked.
Will Registration Charges in India
As per the provisions, stamp duty is chargeable which varies on applicable laws of the respective state.
Documents Required For Registration of Will
A will is registered at the Sub-Registrar offices, which are under the jurisdiction of the state governments.
Testator and Witness.
To complete the registration process on the necessary stamp paper, the testator must attend the Registrar with a witness. The witness's presence contributes to the Will's legitimacy.
Cover Sealed
A will should be sealed when it is deposited with the Registrar by the testator or a representative designated by the testator. After confirming the testator's or the designated person's identity, the Registrar would next hold the sealed cover holding the Will.
Conclusion
The registration of a will ensures that the distribution of assets happens at the wish of the testator. It helps in avoiding conflict and grants legal validity to the interests of the testator.
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