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Overview of Will Registration

A will is a written Document made by a person called a Testator for the disposal and distribution of property. The deed comes into effect after the death of the person making it. It is a written instrument and the last made will is considered the final will and is executed accordingly by the appointed executor.

As per the laws in India, a will should be in written form. Before the laws relating to wills in India were enacted, oral wills made by people were considered valid. A will is governed by the Indian Succession Act of 1925. A will should be only executed after the competent authority has certified the will to be valid and legal. A valid will is executed as per the intentions of the testator specified in the will.

Registration of a Will in India

A Document in India is registered under the Registration Act of 1908. As per Section 17 of the Act, it is mandatory for a certain list of Documents to get registered by a competent authority and Section 18 contains a list of legal Documents for which the registration is optional. A will is one such Document for which registration is optional.

Advantages of Registration of a Will

Registration of a will is an option for the testator. He/she can get his/her will be registered if he/she wishes to. It has been suggested to people to get their will registered. Registration of Wills is not compulsory and depends on the preference of the testator. There are several advantages of registration will that have been defined below:

  • A will which has been registered is considered to be sound evidence against all the claims raised by interested parties with regard to the validity of a will. A registered will also makes a presumption that the person was of sound mind while making the will and that the testator did not make the will under influence of alcohol or any illness.
  • It also removes the chances of people claiming that the signature of the testator has been forged or is false. Thus, there exists a possibility for interested parties to claim that the will has been drafted by the testator under fraud, undue influence or coercion, etc.
  • After the will has been registered, it goes into the safe custody of the registrar. A will can only be withdrawn by the testator himself or any agent appointed by him for this purpose during the lifetime of the testator.
  • If a Will is questioned by a legal heir whose name is not mentioned in the will, then it can only be proven if the will has been registered by the testator.
  • Registration of a will is also beneficial if any of the beneficiaries are dissatisfied with the distribution of the property and is willing to challenge the will on various grounds.

Eligibility Criteria for Making a Will

A person who fulfills the eligibility criteria as defined under Section 59 of the Indian Succession Act is competent to make a will which is valid and legal in the eyes of the law. The criteria are defined below:

  • The testator making a will should be major, i.e. he/she should have attained the age of 18 years. A person below the age of 18 years is a minor and incompetent to make a will. It is also known as testamentary capacity. A minor is not allowed to dispose of a property which is named after him as it is presumed that a minor is not able to make rational decisions.
  • The testator making a will should be in a sound mind condition. The mental status should be free from any mental illness, delusion, acute sickness, etc.
  • The testator should be fully aware of the contents written by him in the will.
  • The will should be made voluntarily without any undue influence, fraud, coercion, etc.

Important Points to be Considered While Making A Will

There are factors which are required to be considered by the testator while making a will. The words used in the will must be used with utmost caution. It must clearly state the intentions of the testator without any ambiguity. The factors are as follows:

  • The words and language used in the will should not be in conflict each other.
  • The clauses stated in the will should not contradict with each other.
  • The clauses of the will should be harmoniously construed.
  • The time or age for making a will has not been defined in any of the statutes. A person who is major and has certain properties in his own name can make a will.
  • A will can be easily revoked or altered at anytime as per the will of the testator.

Procedural Requirements Under Indian Law

There are defined procedural requirements for a will set in The Indian Succession Act of 1925. Thus, the first step is to understand the basic difference between a privileged and an unprivileged will. The difference is stated below:

Privileged Wills

The below-mentioned lists of people are allowed to make a privileged will. These are (a) Soldier/airman engaged in a war situation or in an expedition; and (b) mariner at sea. The person making a privileged will needs to follow certain rules while making a will. These are as follows:

  • Such a testator must make a will in his/her own handwriting.
  • If due to some reason, the testator is not able to make the will and someone else is making it, then it must be duly signed by the testator even if it is not attested.
  • It is important for the person making a will on behalf of the testator to prove that the will has been made as per the wish and directions of the testator if it is not duly signed by the testator.
  • If any instructions with regard to the disposal of the property are in a written form by armed personnel but such personnel is unable to register the same, then such instructions will be considered as a legal will.
  • When a testator makes a privileged will in oral form, then it becomes null after a month.

Unprivileged Wills

Any person except the list of people defined under the privileged will is eligible to make an unprivileged will. The law has enacted certain procedural requirements to be followed. These are as follows:

  • Such a will must be made in writing compulsorily.
  • It is necessary for the testator to sign the will or a person making a will on behalf of the testator needs to sign the will in the presence of such testator.
  • It is mandatory for the will to be attested by two witnesses being called as attesting witnesses who can give proof that the testator signed the will in their presence.
  • There is no unique form of attestation required to be done.

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Documents Required for the Registration of the Will

There are certain Documents which are required to be submitted by the testator while a lease is being registered. These are as follows:

  • Two passport-size photographs of the testator.
  • A certificate of mental fitness of the testator by a competent professional.
  • The original will be made and signed by the testator.
  • 2 witnesses who have witnessed the testator signing the will.
  • 2 passport-size photographs of both witnesses.
  • Photo proof of the testator making the will and the presence of the witnesses.
  • Address proof of the testator.
  • PAN card of the testator and the witnesses.

Procedure for Registration of a Will in India

  • The first step a testator while registering a will has to visit the sub-registrar's office situated in the area where the testator resides or in the area where most of his property lies. If the testator appears before the government official for registration of his will by bringing the original will with him, the reliability and authenticity of a will increases.
  • A testator can register a will anytime as it has a delicate nature. It is an important necessary paper which needs to be kept safe and secure as a testator might not want to disclose the contents of the will to the interested parties. Unlike other Documents which are required to register within a given time frame as per the law, a will can be registered anytime.
  • It is the responsibility of the registrar to carefully examine the will Document carefully and ensure that there are no legal errors in the will before the registration of the will.
  • After the registrar has checked and scrutinized the will, he/she gives a date for the testator to visit the sub-registrar's office for the registration of the will.
  • The testator is under an obligation to pay a nominal fee to the government for the registration of a will. Such registration fee varies from state to state.
  • It is the responsibility of the testator to bring in two witnesses to the sub-registrar's office during the time of registration of the will.
  • After the overall process has been completed, a copy of the registered will is provided to the testator or his agent after a time period of one week or more.

Safekeeping of the Will

It is important for the testator to keep the will safe. It should be kept in a place which can be easily accessible by the beneficiaries after the death of the testator. Some countries provide a national service for the safekeeping of wills and some countries have private institutions for the safekeeping of wills. In India, there is no such service of safekeeping of will. Thus, it is the responsibility of the testator to keep such a will in safe custody.

It is also suggested that the testator must keep copies of the will as he/she can distribute the copies of the will to all the beneficiaries. It is the responsibility of the testator to mention that he has made a definite number of copies and the original and the copy of will bear equal weight. After the execution of the will, a copy of a will is handed over to each beneficiary.

Frequently Asked Questions

Yes, a person is allowed to write a will in his own handwriting on plain paper without any help from a professional person if he has sufficient knowledge to do so. This type of will is called a Holograph will. Such a will is attested by two witnesses who ensure that the will has been signed by the testator in their presence. It is mandatory for the testator and witnesses to duly sign the will. If the parties do not sign the will, it is considered null and void. The person making the will should use clear and unambiguous words in the will.

Yes, if the testator wishes to change a definite clause of the will in spite of making a totally new will, he can do so by making a codicil to the will. A codicil is executed in the same manner as the will is.

Yes, a will can be registered after the death of the person making the will. A will can only be registered if has been duly signed by the testator and attested by both witnesses. It is mandatory for the person approaching the sub-registrar’s office for registration of a will to carry the original will with him along with the death certificate of the testator.

Yes, there is a mandatory registration fee of a nominal nature for the registration of a will. It does not involve mandatory payment of stamp duty on the necessary paper of will.

If a person making a will dies without making a will, his property is distributed and disposed of as per the prevailing and applicable succession laws in India. Priority is given to close family members such as a spouse, parents and children of the deceased.

Both, movable and immovable properties are covered under the will. The assets also include real estate properties, bank deposits, fixed deposits with the bank, securities and bonds, etc.

A will which is not signed is not valid and legal. It is considered as no will at all.

The minimum number of witnesses required for the execution of a will is 2.

A will has to be mandatorily registered under the office of the sub-registrar where the testator resides or most of the property is located. For the purposes of registration, it is mandatory for the testator to be present before the sub-registrar along with 2 witnesses for verification and attestation.

If the testator feels dissatisfied with the content and distribution of assets in the present will, he can change, alter or revoke an existing will anytime before his death and when he is legally competent to do so. The person can revoke an existing will by making a new will and getting a new will registered.

It is not compulsory for a person to get his/her will be drafted by a lawyer. One can make a will if the classification of assets and the beneficiaries are clear in the mind of the testator. A will should be drafted by a lawyer if:

  • The number of members is more and the testator has a living spouse and children from a previous marriage before divorce and a present spouse and children, or the testator is willing to create special arrangements with regards to the distribution of assets to a few family members, or
  • There is a property of the testator located overseas for holiday purposes, or you have assets overseas like a holiday home
  • The testator wishes to make his business a part of assets for the beneficiaries in the will.

In such situations, it is important to contact a lawyer who will help in understanding the legal complexities.

The elements include details of the testator, assets and other properties, the executor, the list of beneficiaries, and the signature of both, the testator and the witnesses. It is the duty of the registrar to properly verify the will in presence of two witnesses.

There is no defined age at which a person should make a will. Any person who is a major and is of sound mind while making a will can make so for distribution of his assets and properties after his death to the family members and close relatives.

An executor is a person appointed by the testator whose name has been mentioned in the will for the execution of the will as per the intentions and wishes of the deceased.

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