Registered Will

Registered Will: can it be legally challenged in the court?

The concept of Will has its deep-rooted origin for a very long time in India; its importance grows with the sense of transferring family wealth and business from one generation to another with ease.

A Will is a declaration by way of an established instrument wherein a person disposes of their property which shall take effect after their death and which to its primary nature is ambulatory and revocable during that person’s life. The Will was mainly recognised because of its ambulatory characteristics as it was a distinguishable feature of the disposition from the normal deed. According to the statute, a will is the aggregate of man’s testamentary intention so far as their manifested duly executed.

A will is a written document wherein a person states the procedure of devolution of his/her property and manifest his/her desire as to what and how a lifetime worth of assets will be dealt with after his/her death. A person who creates the Will is known as the ‘Testator’, and the person for whom the Will is executed is known as the “executor”, and the property disposed of in the Will is known as the subject matter of the Will.

In India, as the registration of the Will is concerned, the Indian Registration Act, 1908 deals with the provision that has to be complied with, and as per the provision of the Indian Registration Act, 1908, there exists no provision for making the registration of the Will compulsory , because  if the Act makes such document to be registered compulsorily that will attract some adverse consequences in many aspects of its practice in India. The registration of the Will in India is optional and at the peril of the parties creating a Will. The contrary opinions have been formed on the matter of registration of Will. It is always advisable by the legislature that a Will if made, should be registered. The Will has not necessarily been too registered by the testator or the creator of the Will, but any person who is an executor of the Will can write the Will after the testator's death. A Will can be kept with any person by himself (testator) or by any executor with the registrar wherein the Will was registered; the Will of the person can be deposited in the seal covered with the testator's name attached with the statement of nature of the document.

There are several legal considerations to creating a Will. The registered Will is a registered document/deed that can be challenged in the court of law for many reasons mentioned in this article below.

Reasons pursuing to which a registered Will can be challenged in the court of law:

1.     Fraud

A document made by any person that obliges any other person to work in part or in full for consideration or without any consideration will not be allowed to sustain. Such document will not be attributed any validity or legality in the eye of law. A registered document is though earned, a presumption that it is free from any malice or by any way illegal; according to the same understanding, it is interrelated that the registered Will is free from any fraud. The person who challenges the Will in the court of law on the reason that it was created by fraud the burden is upon him to prove the fraud in the registered document or registered Will.

2.     Coercion

Any person committing an act of violence against any such person from whom any obligations have to be fulfilled or any task has to be compelling without the consent of his/her is known as coercion. An act of coercion is illegal in the eyes of the law. If the reregistered Will is created by an act of coercion, it will be deemed unlawful, but such a person claiming the Will to be illegal has to prove that the Will is unlawful in this context.

3.     Undue Influence

Undue influence is to use the influence by way of position of power or for any reason of emotional connection wherein the decision is taken is not based on sound mind or informed reason. Such a factor plays a major role in deciding whether any document registered under such influence has any morality or, for that purpose, any legality. The registered Will for any purpose, if made by the undue influence of any family member or by any member of the testator, can be challenged in the court of law if proven by the substantial evidence on this behalf.

4.     Wills having suspicious nature

Various aspects prove the legality of the Will in the court of law, whereas the nature of Will also falls prey to being challenged if the Will is not created in complete accordance with these aspects. Following are various aspects if found, or deficient such Will could be challenged in the court of law:

a.     When any person creates a Will wherein any of the content(s) of the Will is vague or has no meaning as to substance, then such Will can be challenged, whereas if there exist two Wills wherein one is vague and other supplements other at the same time then such Will can be challenged, and such objection will be allowed by law.

b.     There exists a fault with regards to the stamp required by the Testator for registration of Will, and if such Will is not duly stamped but still registered, it can be challenged.

c.      If the thumb impression is required on the Will or not duly made or if there are more thumbprints though required by the law, such impression creates confusion among the signatories on the Will, such confusion on a Will can also be challenged in the court of law.

d.     If by the creation of Will there exists a disposition of property or devolution of any rights in the property but such disposition or devolution is made in favour of any person who is not remotely connected or there exists no connection to substantiate Will’s validity, then such Will can be challenged in the court of law.

e.    The Will has been executed at any place, but while registration, the date, time, and place has to be mentioned on the Will, but if at all the site of the execution on the Will is not mentioned, then such Will can be challenged in the court of law. E.g., If a person has executed a Will in a hospital, but the executor or any person concerned failed to mention this on a Will, then there can be a question raised on the validity of the Will in the court of law.

5.     Error in executing the Will

As any person who wishes to execute a Will, he has to perform some functions in creating Will and then some legal compliance to validate the Will and create a Will that has the support of law and is recognised in the eye of law. If there are errors in the execution of the “Will”, then such a Will can be challenged in the court of law.

6.     Error in the substance of Intention

As discussed above, the Will can now be fairly understood as the Testator’s demand/desire/order for dealing with his property after death. Any person while making a Will maintains a clear and transparent content as to the wish of the Testator, but such intention of the testator should be made clear, and the content of the Will should be concise and unambiguous, but if by any interpretation of the Will there seems so that the provision of any clause in the Will seems ambiguous or contrary to the intention of the testator then such clause or any Will to that extent can be challenged in the court of law.

7.     Incapacitate for Testamentary

There are certain pre-conditions required by any person who creates the Will that is mandatory for him/her to comply, without which anything done in such process of creation will be termed as null and void.

Following are certain conditions for creating a Will:

a. A person should be in the clear conscious to understand the terms and content of the Will and its effect with regards to the execution.

b. A person should be told, or he/she should understand the extent of his/her property he/she wishes to dispose of or his/her rights he/she wishes to devolve to someone.

c. A person willing to create a Will shall be able to comprehend and appreciate the claims to which he/she ought to give effect in terms of execution.

d. A person should be sound, and every decision taken by him/her should be in clear mind to its application when it’s brought in effect as to substance.

e. No person should be allowed to make a decision or create a Will at the time of any phase of paralysis of sound thinking or informed decision making.

f. If a person has a situation of mental disorder in intervals, a Will can only be created when the person is of sound mind.

g. A person should comply with all the requirements of section 10 of the Indian Contract Act, 1872 for a valid establishment of Will.

Conclusion

A Will is a very important aspect of a person’s life as it decides who will inherit all the hard-earned money once the person is dead. Therefore, in a country like India, it becomes very important that if a person finds a Will formed to be unsatisfactory, then he/she has the right to challenge the registered Will in the court to make sure there is no misconduct happening. The registered Will can be challenged for all the reasons mentioned above, and the procedure to be followed has been discussed in the article.

 - Adv. Anita Adsul

What is a will?

A will is a legal document that dictates the handling of all the assets and their distribution among the children or other parties on the event of death of a person. 

The document is a clear conveyer of your wishes after the incident of passing away.

How to make a property will in India?

To make a will of property in India, you can either consult a lawyer or follow the below given process:

Start with a declaration stating that this is your last will and you are creating it in your senses, free from any pressure. Additionally add name, age and address here.

List down your assets along with its value and details of the necessary documents for those assets. The assets may include property, bank deposits, shares and other funds among other assets.

Now make a list of beneficiaries who shall inherit the assets after your death. Make all the provisions and carefully make the list to eliminate any ambiguity.

You’ll have to carefully lay down provisions for your children as well if they are below 18 years of age. Mention the guardianship and people responsible for them in your absence.

It is important to mention the executor of the will in this legal document. This person will be responsible to execute the will after your death.

If you wish to mention anything in particular or any other wishes, mention them in the will

Now that you have documented everything, sign the will and get two adult witnesses to sign it as well at the time of registration of the will.

I know notarising and registering your will is not mandatory according to Indian law but it is highly advisable to do so in order to avoid any conflicts or frauds; and to ensure that the will is executed properly.

Now that you know how to write will for property, here is what you should know about who can make the will.

Who can make the will?

According to the Indian Succession Act 1925, Section 59, the maker of the will must be of sound mind and above 18 years of age.

What is the format of a will?

There is no prescribed form of a will. In order for it to be effective, it needs to be properly signed and attested. It must be initialed by the testator at the end of every page and next to any correction and alteration. 

Is handwritten will legal in India?

Yes, the handwritten Wills are legal in India. However, they need to be legible and should also follow the criterions or the essentials of a valid will. What is a valid Will in India? If any Will has the essentials mentioned in it along with the proper intention of the testator, it is valid.

What is will registration?

The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity. In India, the registration of wills is not compulsory even if it relates to immovable property. The non-registration of a will does not lead to any inference against the genuineness of a will.

Does a Will need to be registered in India?

In India, registration of Wills is not compulsory. Once a Will is registered, it is placed in the safe custody of the Registrar and cannot be tampered with, destroyed, mutilated or stolen. However, non-registration of a Will does not lead to any inference against its genuineness.

Can a will be registered anywhere in India?

Will is to be registered at the office of Sub-registrar of Assurances which is in the jurisdiction of the residence of the person who made the Will. There are no government fees for registration of a Will except scanning and photocopy charges which is very nominal.

Who can witness a will in India?

Witnesses should be adults, i.e. above 18 years of age. While choosing the witness you must keep in mind that they should survive you as they may need to testify the Will after your death. It is important to ensure that your witness does not have any potential bias or conflict of interest.

How long is a will valid after death India?

Once the contents of the will are carried out the will is considered to be executed. There are no specific laws regarding longevity/ period of time for the will in Indian law. Once the period of 12 years is passed, the will is said to be Permanent.

Can a beneficiary be a witness to a will in India?

Inheritor Witnessing Will

As per the Indian Succession Act, an inheritor mentioned in the Will or his or her wife or husband cannot be a witness to the Will. Hence, it is important that any person mentioned as an inheritor or beneficiary in a Will not witness or attest the Will.

Which will is valid in India?

The Will of the testator must be written by people with sound and clear mind means any person under a state of intoxication, illness or any similar cause cannot make a Will; Either the Will is registered or the probate proceedings have the authority if the Will has been made with due process of the law.

by- Adv. Sunita Nagpure

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Writing a Will?

5 Things to know before writing a Will

1. Who will be the Executor of your estate?

You should decide who will be the Executor of your estate, and ask them if they will take on the role. Honesty and integrity are both important when choosing your Executor, as they will ensure that the terms of your Will are carried out.

It’s best to nominate someone you know and trust. This could be someone outside your family or friend circle, such as an accountant or lawyer. You can also appoint more than one executor in case the first person you choose is unable to fulfil the role at the time it’s needed.

2. Who will be the Beneficiaries of your Will?

A beneficiary is a person or people who inherit gifts or your estate, when you pass away. You get to choose your beneficiaries, with people most often choosing loved ones who mean a lot to them.

If you have a child or children, you will most likely nominate them as beneficiaries, so you can have peace of mind that they will be cared for and protected. Other beneficiaries can be parents, siblings, significant others, other relatives, and good friends. Many people also include charities and worthy causes in their Will as a beneficiary.

3. What will happen to your pets after you pass away?

Our pets are important members of our families. If you have a much-loved pet, you may want to ensure that they are cared for in the future.

You can’t leave a gift directly to your pet, but you can nominate a family member or friend to care for them. You can then allocate funds for the care of your pet, which your friend or family member will manage.

4. Can you leave a gift to a charity in your Will? 

You decide who will benefit from specific gifts in your Will or a share in your estate, after any outstanding expenses are paid. 

This means that as well as choosing family and friends as beneficiaries, you can also include a favourite charity, such as The Fred Hollows Foundation, in your Will. 

By choosing to leave a bequest to The Foundation, you will be helping restore sight to some of the most vulnerable people in Australia, and in 25 countries where we work. And just like Fred, your legacy will live on, helping to end avoidable blindness and strengthening eye health systems and the global health workforce for generations to come. A gift of as little as 1% of your Estate can make a significant difference to causes that you care about.

Alison, a passionate supporter of The Fred Hollows Foundation, who has left  a gift in her Will, says: "I strongly encourage anyone who supports The Foundation to seriously consider leaving a gift in their Will. It leaves a warm and fuzzy feeling to know that folks’ lives will be improved due to my contribution."

5. What happens if your don't have a Will? 

If you pass away unexpectedly without having written a Will, the court in your State or Territory will be appointed Executor and will use its own rules to decide what happens to your children (if you have any), as well as your assets and estate. This can be lengthy, stressful and expensive for your loved ones, who will have to bear the burden, while grieving. 

Having a Will in place will give you peace of mind that all your affairs are in order, and your nearest and dearest will be cared for, with one thing less to stress about.

-Adv. Anita Adsul