Registration of a Will. Should NRIs get it Registered?

• Ghousuddin and others Vs Khaja Moinuddin and others 2009 APHC

• Jagtar Singh versus Jagir Kaur, 1991, Civil Court Cases, 288 P&H

• Harnek Singh versus Sukhdev Singh, 2002(1) Civil Court Cases 59 P&H

• Deepender Singh Dhillon Vs. General Public 1997 Suppl. Civil Court Cases 22 P&H

A will is an example of a testamentary document, which means that it is applicable at the time of death only. It entails the defined shares of the beneficiaries, right of ownership or life interest in favor of the beneficiaries, beneficiaries can be a third person also. It is however mandatory that the property so stipulated in the will must be owned by the testator. For any other detailed clarifications of the property entailed in the will, one can use the codicil as well. Property can be either movable or immovable. As per section 18 read with section 27 read with section 51 of the Registration Act 1908, one can conclude that registration or will is optional, the same is not bound to be registered, but if done, then it would further increase the sanctity, reliability and effectiveness of the will. Will can be registered if the testator deems fit in his wisdom to do that, however the law does not compel him to do so.

According to section 68 of the Indian Evidence Act 1872, A will even if registered still must be proved by the attesting witnesses of the will, whereas the other documents could be proved simply by tendering the registered document. There are three essentials of a will, that are Legal Declaration, Disposition of property, Death of testator. However, one can move for probate of a will which is an authentication of Will by the competent court, which as per section 41 of the Indian Evidence Act, 1872 would be a conclusive proof of the declaration of title in favor of the beneficiaries. Under Section 40 of the Registration Act 1908, after death of the testator, any person named or claiming as executor or otherwise under a will, may present the Will to any Registrar or Sub-Registrar for registration.

When such Will is presented by Executor for registration of Will after death of testator, the same may be registered in the same manner as any other document, if the registering officer is satisfied—

(a) that the will was executed by the testator

(b) that the testator is dead; and

(c) that the person presenting the will is entitled to present the same under section 40 of the Registration Act 1908.

However, under the Muslim personal law the will can be oral or written. In the case of Mohd. Ghousuddin and others Vs Khaja Moinuddin and others 2009 APHC, the Hon’ble High Court opined that if a will made by testator is in writing then the same must be proved like any other will under section 68 of the Indian Evidence Act 1872. In Sunni and Shia Muslim Personal law there is also a restraint of property and restraint of person in the concept of will.

In Shia law, only 1/3rd property can be given to legal heirs or non-legal heirs without the consent of the others. In Sunni law, legal heir can be given 1/3 property, but prior consent of other heirs is required. However, 1/3rd property to non-legal heir can be given without consent of legal heirs. If more than 1/3rd property is to be given, then consent of all legal heirs is required. In the case of Jagtar Singh versus Jagir Kaur, 1991, Civil Court Cases, 288 P&H the Hon’ble court opined that, if the first will is a registered one and subsequent will is neither registered nor scribed by deed writer, subsequent will will be surrounded by suspicious circumstances and the execution of the same cannot be believed.

In the case of Harnek Singh versus Sukhdev Singh, 2002(1) Civil Court Cases 59 P&H the Hon’ble court opined that, authenticity of registered will cannot be doubted easily. The onus is always upon the propounder of the will to remove the suspicious circumstances. In the case of Deepender Singh Dhillon Vs. General Public 1997 Suppl. Civil Court Cases 22 P&H the Hon’ble court held that mere registration of will in itself is not sufficient to dispel all suspicions regarding execution of will, the court has to be fully satisfied that the will has been validly executed by the testator out of his free will, and in proper sound mind.