Will

The Risks of Not Registering Your Will

calendar21 Apr, 2023
timeReading Time: 7 Minutes
The Risks of Not Registering Your Will

A will is a legal document that outlines a person’s final wishes and directives for the distribution of their assets and property after their death. It is a critical part of estate planning and is used to ensure that a person’s assets are distributed according to their wishes and to minimize any potential disputes or legal challenges that may arise after their death.

A Will Typically Include Several Key Elements, Including:

  • Identification of the Testator:

The will should begin by identifying the person who is creating the will, also known as the testator. This typically includes their full name, date of birth, and other identifying information.

  • Appointment of an Executor:

The executor is the person who is responsible for carrying out the wishes outlined in the will. This may include distributing assets, paying debts and taxes, and handling any other administrative tasks related to the estate.

  • Specific Gifts and Bequests:

 The will should specify any specific gifts or bequests that the testator wants to make, such as leaving a particular item to a specific person or donating money to a charity.

  • Residual Estate:

The residual estate is what is left over after any specific gifts or bequests have been made. The will should specify how the residual estate should be distributed, such as dividing it equally among beneficiaries or leaving it to a particular individual or organization.

  • Guardianship for Minor Children:

If the testator has minor children, the will should specify who will be responsible for their care and guardianship in the event of the testator’s death.

  • Funeral Arrangements

The will may also specify the testator’s wishes for their funeral arrangements, such as burial or cremation.

It is important to note that a will must meet certain legal requirements in order to be valid. These requirements vary by jurisdiction, but typically include requirements such as the testator being of sound mind and body, the will being signed and witnessed by multiple individuals, and the will being filed with the appropriate court or government agency. Creating a will is an essential part of estate planning and can help ensure that a person’s final wishes are respected and carried out after their death.

What Is Indian Provision Regarding Will

The Indian provision regarding will is governed by the Indian Succession Act, 1925. According to the Act, a will is a legal declaration by which a person disposes of his property, both movable and immovable, with the intention of taking effect after his death. Under the Act, any person who is above the age of 18 years and is of sound mind can make a will. The will must be in writing, and it must be signed by the testator (the person making the will) or by someone on his behalf in his presence and under his direction. The will must also be attested by two or more witnesses, who must have seen the testator sign or affix his mark to the will.

A will can be revoked or altered by the testator at any time during his lifetime, provided he is of sound mind and is not acting under any undue influence or coercion. The revocation or alteration of a will must also be made in writing and must be signed by the testator and attested by two witnesses. In case a person dies without making a will, his property is distributed among his legal heirs according to the rules of succession laid down in the Act. However, if a person makes a will, his property is distributed among the beneficiaries named in the will, subject to the provisions of the Act.

It is important to note that the rules and regulations regarding wills may vary depending on the state in India, and it is advisable to consult a lawyer for specific guidance on drafting a will in India. The Indian Succession Act, a will can also appoint an executor who will manage and distribute the estate of the testator after his death. The executor must be competent to contract, and he must accept his appointment in writing.

In case there is a dispute regarding the validity of a will or its interpretation, the matter can be brought before a court of law for resolution. The court will consider the evidence presented by both parties and make a decision based on the provisions of the Act and other relevant laws.

It is important to note that making a will is a crucial step in estate planning, and it can help ensure that the testator’s property is distributed according to his wishes after his death. Moreover, a well-drafted will can also help minimize disputes among family members and other beneficiaries, and it can also help reduce the burden of legal and administrative formalities on the heirs. Therefore, it is advisable for individuals to consult a lawyer or a professional estate planner to ensure that their wills are properly drafted and executed.

How to Register Your Will?

To register your will, you can follow these steps:

  • Draft Your Will:

Consult with a lawyer to draft your will. The will should include details such as the distribution of your assets, the appointment of an executor, and the names of your beneficiaries.

  • Get It Witnessed:

Once you have drafted your will, get it witnessed by two or more witnesses. The witnesses should be adults and should not be beneficiaries in your will.

  • Visit The Sub-Registrar’s Office:

Visit the sub-registrar’s office in the jurisdiction where your property is located. Bring your original will, along with photocopies of your ID proof, address proof, and property documents.

  • Fill Out The Application Form:

Obtain the application form from the sub-registrar’s office and fill out all the necessary details.

  • Submit The Documents:

Submit the application form, original will, and photocopies of the supporting documents to the sub-registrar’s office. The sub-registrar will verify the documents and retain the original will.

  • Pay The Registration Fees:

Pay the registration fees as specified by the sub-registrar’s office. The fees may vary depending on the value of your property.

  • Collect The Receipt:

After paying the fees, collect the receipt from the sub-registrar’s office. This receipt serves as proof of registration of your will.

By following these steps, you can register your will and ensure that your assets are distributed according to your wishes.

The Risks of Not Registering Your Will?

When it comes to estate planning, creating a will is one of the most important steps you can take to ensure that your wishes are carried out after you pass away. A will is a legal document that outlines how your assets should be distributed among your beneficiaries, and it also names an executor who will oversee the distribution process. However, simply creating a will is not enough. It is also important to register your will with the appropriate authorities to ensure that it is legally recognized and enforceable. Here are some of the risks of not registering your will:

  1. Your will may not be found: If your will is not registered, there is a risk that it may not be found after you pass away. This can happen if you keep your will in a safe or other secure location without informing anyone of its whereabouts. If your will cannot be located, it may be presumed that you died intestate (without a will), which can lead to a lengthy and costly probate process.
  2. Your wishes may not be followed: Even if your will is found, there is no guarantee that your wishes will be followed if it is not registered. This is because an unregistered will may not be legally recognized, which means that your beneficiaries may not be entitled to receive the assets that you intended to leave them. This can lead to disputes and litigation among your heirs, which can further delay the distribution of your estate.
  3. Your will may be challenged: An unregistered will is more vulnerable to being challenged in court by disgruntled beneficiaries or other parties who believe that they are entitled to a share of your estate. This can be especially problematic if your will contains unusual provisions or if there is a dispute over your mental capacity at the time the will was created.
  4. Your executor may face legal issues: If your will is not registered, your executor may face legal issues when attempting to distribute your assets. For example, your executor may be required to provide a bond or other form of security to the court before they are allowed to distribute your assets. This can be a costly and time-consuming process, which can delay the distribution of your estate and increase the overall costs of administering your estate.

In summary, registering your will is an important step in ensuring that your wishes are carried out after you pass away. By registering your will, you can help to ensure that it is legally recognized and enforceable, which can help to minimize the risk of disputes and other issues that can arise during the probate process. If you have not yet registered your will, it is important to do so as soon as possible to ensure that your wishes are protected.

Case – Smt. Pushpa Devi v. UOI & Ors (2019) 8 SCC 739.

The case of Smt. Pushpa Devi v. UOI & Ors, which was heard by the Supreme Court of India in 2019.

In this case, the testator had executed a will in favor of his wife, Smt. Pushpa Devi. However, the will was not registered, and the testator died intestate. Subsequently, a dispute arose between the legal heirs of the deceased regarding the validity of the will. The legal heirs who were opposed to the will contended that since the will was not registered, it could not be considered as a valid testamentary document, and the property of the deceased should be distributed according to the rules of intestate succession.

However, Smt. Pushpa Devi, the beneficiary named in the will, argued that the will was a valid testamentary document, and the property of the deceased should be distributed according to the provisions of the will.

The Supreme Court, in its judgment, held that the will, even though unregistered, was a valid testamentary document, and the property of the deceased should be distributed according to its provisions. The Court observed that under the Indian Succession Act, registration of a will is not mandatory, and an unregistered will can also be treated as a valid testamentary document, provided it is duly executed and attested as per the provisions of the Act. The Court further held that the burden of proving the authenticity and validity of the will lies on the beneficiary named in the will, and in this case, Smt. Pushpa Devi had successfully discharged this burden.

Therefore, this case establishes the principle that an unregistered will can be considered as a valid testamentary document under Indian law, provided it is executed and attested as per the provisions of the Indian Succession Act.

Conclusion

In conclusion, creating a will is an essential part of estate planning, which helps ensure that a person’s final wishes are respected and carried out after their death. A will must meet certain legal requirements to be valid, and it is important to consult with a lawyer or a professional estate planner to ensure that the will is properly drafted and executed. In India, the Indian Succession Act, 1925[1], governs the provisions regarding wills. To register a will, one can consult with a lawyer to draft a will and get it witnessed by two or more witnesses. One can then visit the sub-registrar’s office to fill out the application form and submit the original will and photocopies of the supporting documents. Registering a will can help ensure that the property is distributed according to the testator’s wishes and minimize disputes among family members and beneficiaries.

Read Our Article: Updating Your Registered Will: What You Need To Know

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