Inheritance under Unregistered Will in India

When it comes to inheritance and distribution of the assets and properties by a testamentary succession, it is usually governed by a registered Will. However, there may be a situation when an individual passes away without registering a Will that might lead to uncertainties and difficulties to acquire property under unregistered Will.

This could spark a series of questions about unregistered Will, including:

• Is it mandatory to register a Will?
• What is the validity of such unregistered Wills in the eyes of the law?
• Can property be transferred under such unregistered Wills?

Dive in this article to learn all that you must know about unregistered Wills in India.

What is a Will?

A Will is a valid legal document made by a testator before their demise to determine the distribution of assets after the person dies. A last Will is a legally binding statement of the testator, the person who creates the Will, about the property they own or have rights to.

There is no specified format to create a Will. For instance, it is not mandatory to create a Will on a stamp paper or a legal document.

A Handwritten Will is equally valid in the eyes of law; having said, that it can be understood that it is not necessary that it always has to be a typed Will.

Key Aspects of a Valid Will

The key aspects you must know about drafting a ‘valid’ Will are:

• Anyone of sound mind and who is not a minor is eligible to draft a valid Will.
• The Will must include - name of the testator, all the details related to the assets and property they possess, the manner of distribution or disposition of the property and it should be clearly specified.
• An executor, legatee or any beneficiary must be appointed for the purpose of executing the Will. The copy will be provided to the surviving heirs of the testator.
• The Will must be executed by two attesting witnesses, who are in no way beneficiary to it. The Will becomes null and void if a beneficiary acts as a witness; this is due to a lack of accountability and fear of discrimination. A Will is nevertheless considered legal in the eyes of the law even if it was not registered and had two impartial witnesses.
• It is vital to keep in mind that any prior Will written by any testator can be simply revoked during that testator's lifetime. In addition, the testator may make more than one Will throughout their lifetime. This is particularly significant when the testator disposes of the assets specified in the Will during that testator's lifetime or when the beneficiary predeceases the testator.  
• However, in other cases, it may basically need some minor modifications, in which case, a codicil may be used.
• A Codicil works like an additional page in the original Will and allows the testator to make any changes they need to in the Will, without actually changing the rest of it.

Types of Wills

There are basically two types of Will. These are:

• Registered Will: Registered Wills are considered relatively more valid and cannot be easily challenged in Court.
• Unregistered Will: Unregistered Wills are Wills that were simply written on a piece of paper by the executor and stored safely until after the executor’s death. As per the law, an unregistered Will is unclear and can be easily challenged.

Execution of an Unregistered Will

Provisions of Section 63 of the Indian Succession Act, 1925 define the process of execution of an unregistered Will.

• In every Will, the relevant testator must sign or affix their mark, or it must be signed in their presence and at their instruction by another person.
• The testator's signature, mark or the signature of the person signing on their behalf must appear to deem the Will effective.
• The Will must be duly signed by two or more witnesses.
• Each witness must observe the testator's sign or mark.
• Every witness must sign in the presence of the testator or after receiving a personal acknowledgement from them.
• There is no specific type of attestation needed.

The presence of at least two witnesses must attest to the Will's execution in order for it to be valid. Only following the demise of the testator or testatrix, Will execution by the executant must be proven in the probate procedure before the court of law.

Unregistered Will and its Validity

Validity under the Indian Registration Act,1908

• Resolutions for all kinds of disagreements related to the legality of an unregistered Will has been mentioned in Section 28 of the Indian Registration Act, 1908. If the Will fulfills all the aspects mentioned above, it is not mandatory for it to be registered.
• There is no time limit to get a Will registered as the same has been exempted under Section 23, read with Section 27, of the Indian Registration Act. The provisions stated thereunder specifically refer to the topic of registering Wills after they have been executed and without any time limit.
• Additionally, if the Will is in the sub-registrar's custody, it cannot be easily tampered, destroyed, disfigured, or stolen. Furthermore, there is no stamp duty required for the registration of a Will.

Indian Succession Act of 1925: Validity

As per the provisions of Section 63 of the Indian Succession Act, calling at least one of the attesting witnesses is the only way to demonstrate an unregistered Will’s execution and validity. The witnesses signing the Will must not be one of its beneficiaries and should be present when the testator signs the draft. The witness must also be alive and able to testify.

However, registering a Will is advised in order to prevent challenges to its contents. Additionally, it will serve as evidence and confirmation that the Will is the decedent's final testament.

Other Legal Alternatives

• Even after the testator's death, you can still use the option of registering an unregistered Will at a later date. The Will's witnesses, the death certificate and the Will can be presented for this specific reason to the registrar, who, after being satisfied with the Will's veracity, can register it.  
• If you do not want to get the Will registered, the executor, or in their absence, the legal heir may get the letters of administration by filing a petition in the Court.
• It is crucial to remember that such a petition must be filed in the relevant District Court or High Court. Additionally, there is no deadline for requesting the Court to request a probate for the Will. However, if such a petition is submitted three years after the testator's death, the executor will be formally required to explain the reason for the delay.

Transfer of Property under Unregistered Will

When transferring property in case of an unregistered Will, the executor of the Will must obtain a Will's probate – several Indian states have made this a requirement in cases involving the transfer of property.

Therefore, if such a Will has not been registered, the claimant is legally mandated to get the succession certificate from the Court. A Probate is necessarily a copy, issued under the seal and signature of the Court of competent jurisdiction, that certifies a specific Will to have been proven.

It is important to submit a petition for probate or letters of administration of a testator’s Will within three years of their demise to avoid any unnecessary complication and delay in the future.

Note: Christian and Muslim Wills do not need probate.

Additionally, the executor's role is essential in realizing the decedent's inheritance and settling their debts. Courts usually award probate to the Executor named in the Will, and it is up to them to appropriately divide the inheritances as specified under such a Will.

However, it’s crucial to understand that unless it is legally partitioned, ancestral property cannot be transferred under a Will, whether it is registered or unregistered.

Contesting Unregistered Will

The Will cannot be contested solely on the ground that it was not registered. But it can be challenged on other grounds such as the Will was created under undue influence or coercion, testator was of unsound mind or insane, etc.

Conclusion

Unregistered Wills pose significant challenges to beneficiaries seeking to claim their inheritance. From establishing validity to navigating complex probate procedure, the absence of registration adds layers of complexity. By understanding the legal landscape and proactive measures, individuals can strive to safeguard their testamentary desires and minimize the potential complications arising from an unregistered Will.