In terms of section 18 of Registration act, the registration of a WILL is not compulsory. In the case of Ishwardeo Narain Singh vs Kamta Devi ( AIR 1954 SC280), the Supreme Court also held and observed that in a majority of cases wills are not registered and to draw any inference against the genuineness of the will on the ground of its non-registration was wholly unwarranted. Therefore, we may assume that a WILL does not get additional legal sanctity because of its registration.
Then why one has to register his/her will?
It is factual that non-registration of Will does not lead to any inference against the genuineness of a Will or a registered Will does not stop a legal heir wanting to contest the same. Hence, at the outset we need to examine the entire process of Will, to understand the advantage of registering a Will.
A will is not a final legal document to distribute the estate of a deceased person. The executor named in the will has to file the testamentary proceedings in the civil court of competent jurisdiction within two years from the death of the person who made the will. The petitioner has to establish the proof of death of testator, and it is the last will and valid testament of the deceased. The court issues a notice to the legal heirs of the testator to file objections if any to the granting of probate and also directs the publication of a citation in a local newspaper. The court would look into the facts whether the document put forward before it, is the last will and testament of a deceased person, whether the will was duly executed and attested in accordance with the law and whether at the time of such execution the testator had sound disposing mind and issue letter of probate or letter of administration as the case may be after it satisfies on above points.
Since a Will can be challenged on the grounds like testator lacked mental capacity while making the Will, the Will was altered after it was signed, and testator was unduly influenced etc. In such cases, the onus of proof is always on the person who propounds the Will. A registered Will provides strong legal evidence against the petition that the testator was lacking the testamentary capacity due to impairment or disturbance in the functioning of his/her mind or brain (whether because of mental illness or under the influence of alcohol, drugs or medication etc.), as he or she would not have had the sufficient capacity to make a valid Will and further register it at Registrar’s office. In view of the registered Will cannot be destroyed, mutilated, stolen or tampered with, by the third person/s, the court may not suspect the authenticity of the will and likely presume that the testator knew and approved the contents of the Will when it is registered (unless the court has some strong reasons to suspect that the will was done in a fraudulent means).Further, in the case of a registered will, any subsequent explanation, alteration, or addition/deletion to dispositions in relation to the ‘Will’ shall be deemed to form part of the Will (Codocil) and same must be registered. Any non-registered explanation, alteration, or addition/deletion to dispositions in relation to a registered Will or the non-registered revocation of a registered Will is treated as void and courts do not accept them as evidence.
Where the court declines to issue letter of probate against a Will in the testamentary proceedings for any reasons or strike off the letter of probate issued by it on a successful challenge, the testator’s assets will be distributed in accordance with the testator’s previous valid Will or if there is no previous valid Will, the assets will be distributed according to the intestacy rules (intestacy rules means the laws of intestate succession applicable when a person died without having made a will/passed away intestate).
Click below for related articles:
Disclaimer: This post ‘ what is the advantage of registering a Will?’ is a sketchy write-up and is not to be treated as a meticulous information and under any circumstances, the contents of this article should not be construed as legal advice. For clarifications or interpretations if any the readers are suggested to take the advice from a qualified legal practitioner. The author of this post or the website is not responsible for the mistakes, errors, ambiguity, discrepancy, doubts, and inconsistency with law, or quality of information provided here. The liability or claim of any nature on account of information provided here for whatsoever cause is not recognized.