A testator doesn’t have to submit her will to sub-registrar’s office

The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the  following Q&A which was published by the Mint Newspaper on 20th October, 2020 and the online edition of the same can be found here.

My mother in 1987 had made a will which was not registered and was in favour of my elder sister, who is not married. My lawyer says that the unregistered will made in 1987 is valid. Please confirm this. Also, my elder sister, who is now 78, wants to make a will in my favour. My lawyer says that the will has to be registered, as currently unregistered wills are not valid. My lawyer states that my sister has to visit the registry office, and it will not be possible for the official to come home to get the signature. Please advise.

—Name withheld on request

We assume that your sister is a Hindu by faith and, hence, certain rules will apply accordingly. Testamentary succession for Hindus is governed under the Indian Succession Act, 1925. A will is very simple to make—all you need to do is put your signature onto a typed (preferred option) will, which would then need to be signed by two witnesses. It is not mandatory to register a will in India (irrespective of whether you are bequeathing immovable or movable properties).

A will is an optionally registrable document under Section 18(e) the Indian Registration Act, 1908. Accordingly, there is no compulsion on a testator to submit his will to the sub-registrar’s office. Registering a will does not automatically characterize it as valid—it only acts as proof of signature and helps in proving the mental capacity of the testator. Registered and unregistered wills will both undergo scrutiny by the court at the time of granting probate (if applicable).

In terms of practical issues, given the pandemic, yes it would be difficult to get an appointment at the sub-registrars office to register the Will. It would be risky to visit such public spaces as well. To help secure your sister’s estate without registering her will, she may consider obtaining a doctor’s certificate (certifying her mental health and wellness immediately prior to execution of the will), and if possible video record the execution for evidentiary purposes.

The doctor can also be one of the two independent witnesses required for the execution of the will itself. Taking such measures will help show the court (if challenged for any reason) that the will was executed in a proper and transparent manner. This can be an interim measure. If she is still keen to register her will, she can re-execute a new will following the registration formalities.