Sometimes, a will remains unregistered after the death of the testator. Though it can be registered even after the death of the testator by the claimants, however, it is not necessary to register a will in India.
So, what happens when a Will remains unregistered? This blog will help you in understanding the validity and legal implications of an unregistered will.
A last will is a legal declaration of the intention of the person making the will i.e. testator and can be made concerning the property that the testator owns or has rights over. The last will must state clearly that the testator desired it to come effect after his death and such a division of the property after the death of the testator making a will is known as testamentary succession.
However, it is not mandatory to register a will as per the list of documents mentioned under section 18 of the Indian Registration Act, 1908. Hence, an unregistered will is valid in India and it depends on the choice of the testator to register a will or not.
The following essentials of a Will must be kept in mind to make it valid:
- The will must be executed by the testator, i.e., the person making the will or by some other person in the presence of the testator and under his directions. If it is not possible for the testator to affix his signature, then he may also put his thumb impression.
- The signature must be placed in such a manner as it will appear prima facie intention to give effect to the Will.
- The Will must be signed by the testator in the presence of two witnesses, and the witnesses must also affix their signatures.
An unregistered will is valid if it conforms to the legal requirement of two witnesses who have signed the will in the presence of the testator and the testator has signed the will in their presence.
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Unregistered Wills and their validity
- Under the provisions of Section 18 of the Indian Registration Act, there is no stipulation that direct a will to be registered, and hence, there exists no debate over the confirmed validity of an unregistered will since the same will is valid irrespective of its registration as long as it accomplices with all points regarding the validity of the will.
- The importance of the Will cannot be lowered down just because it is not registered.
However, it is always advised to register your will for not leaving the contents of the will up for the challenge. Registration of the will is the proof and confirmation of the fact that this registered will is the last remaining will and testament of the deceased. Also, an unregistered will can be easily tampered with, disfigured, tampered with, or stolen because it is not in the custody of the Sub-Registrar. - Though a registered will has its benefits. The burden of proof lies on the party propounding a will, and he must satisfy the conscience of the Court that instrument propounded is the Last Will of a free and capable testator. However, an unregistered will be valid enough if two witnesses are present and sign the same will. Hence registration of will is optional under section 63 of the Indian Succession Act which is applicable overall unregistered will.
- Moreover, under section 23 read with section 27 of the Indian Registration Act there exists an exemption for the registration of the will, even after the mandatory four period lapses under the Indian Registration Act. Hence, a Will can be registered anytime after its execution as there is no prescribed time limit for its registration.
- An unregistered will can also be registered at a later date even after the death of the testator. For this purpose, it is required to produce witnesses of the will, the death certificate of the testator, and the original will before the Sub Registrar. The Sub Registrar after the satisfaction over the genuineness of the will register the same. When you do not want your will to be registered, then the executor or any legal heir in the absence of the executor can move to the court to obtain the letters of administration.
- To obtain such a Letter of administration or probate, the petition shall be required to be filed in the concerned District Court or the High Court. There is no limitation for approaching the Court to obtain the letter of administration or probate. However, if such a petition is filed after three years of the demise of the testator then the executor will be duly asked to explain such a delay.
- The only way to prove an unregistered will under Section 63 of the Indian Succession Act, is to call at least one attesting witness for proving the execution and validity of such a will. Such an attesting witness should be alive and in a position to depose the statement that the testator signed the will of his free will and such an attesting witness must not be a beneficiary under a will because the beneficiary in due course has to submit the Will to a court as a propounder and contest all challenges to the Will.
- A will whether registered or unregistered are always subject to challenge, and when it is challenged then it must go through the entire trial process by getting converted into a suit if such challenge is accepted by the court. However, an unregistered will is difficult to be accepted by the courts since there exists the possibility of the will being fraudulent because it places doubt over the genuineness of its contents.
Can an unregistered Will be challenged?
A will cannot be challenged on the sole ground that it is unregistered. However, it is challenged if it is not signed in the presence of two witnesses and attested by the witnesses, or the testator lacks testamentary capacity while forming the will, or has not any intention to make the will, or the will have been made by ill means such as fraud or undue influence, or revocation or claim made by a family who is not adequately provided by a will, etc.
How a property is transferred in an unregistered will?
- To transfer property in an unregistered will, it is required that the executor of the will acquire probate of the will as it has been mandatory by several states in India in case of transfer of immovable property. Probate is legally issued under the seal and signature of a Court officer and thus, it is a document that endorses the fact that a particular will had been proven and authentic.
- If such will be unregistered then it is mandatorily required to acquire the succession certificate by the claimant from the court and this certificate is required for the transfer of movable properties like bank account balances, shares, bonds, securities, etc.
- The limitation period in case of a petition for the probate or letters of administration of a Will must be filed within three years from the death of the testator to avoid unnecessary delays. Also, this probate is not necessary for Christian and Muslim Wills.
- Further, the executor has to realize the estate of the deceased and paying off his debts. The property must be distributed to the beneficiaries as mentioned under a Will and courts generally grant probate to the Executor whose name is mentioned in the Will. Also, an ancestral property that is not partitioned cannot be transferred under will whether it is registered or unregistered.