According to Section 2 (h) of the Indian Succession Act, 1925, "Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death". For a will to be legal, it has to be validly executed.
Section 63 which is incorporated under Chapter III of Part VI of the Indian Succession Act, 1925 talks about the process of execution in case of unprivileged wills. As per Section 63, an unprivileged will shall be executed according to the following rules:
(a) The testator (person making the Will) shall sign or affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
It has to be noted that though the testator can execute the will by affixing his mark, the attesting witnesses are to necessarily sign and do not have the liberty to affix their mark. Additionally, the attesting witnesses need not know the content of the will before signing on the same.
For the execution of privileged wills, we need to look closely at Section 66 of the Indian Succession Act, 1925. As per the said Section, the following rules govern the execution of privileged wills:
(a) The will may be written wholly by the testator, with his own hand. In such a case, it need not be signed or attested.
(b) It may be written wholly or in part by another person, and signed by the testator. In such a case, it need not be attested.
(c) If the instrument purporting to be a will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by the testator's directions or that he recognized it as his will.
(d) If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.
(e) If the soldier, airman or mariner has written instructions for the preparation of his will, but has died before it could be prepared and executed, such instructions shall be considered to constitute his will.
(f) If the soldier, airman or mariner has, in the presence of two witnesses, given verbal instructions for the preparation of his will, and they have been reduced into writing in his lifetime, but he has died before the instrument could be prepared and executed, such instructions shall be considered to constitute his will, although they may not have been reduced into writing in his presence, nor read over to him.
(g) The soldier, airman or mariner may make a will by word of mouth by declaring his intentions before two witnesses present at the same time.
(h) A will made by word of mouth shall be null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged will.
Now, coming to the registration part, it is of foremost importance to answer at first hand the question whether the registration of a will is compulsory.
To get the best answer to this question, one must examine the requirements of the Registration Act, 1908. Documents that must be compulsorily registered are included in Section 17 of the aforementioned Act. "Will" is not included in the list of documents that must be mandatorily registrable by law under Section 17. Therefore, it follows that compulsorily registering a will is not required by law. Put another way, if a will complies with all the other requirements outlined in the Indian Succession Act, 1925, it is just as legitimate whether it is registered or not.
It is noteworthy that the instruments listed in Section 18 of the Registration Act, 1908 are those for which registration is optional. "Will" is listed as an instrument in Clause (e) of Section 18, the registration of which is therefore optional.
The mere fact that a will is not registered does not make it improbable, much less impossible that the will was executed. The Supreme Court in the case of Ishwardeo Narain Singh v. Smt. Kamta Devi and others (AIR 1954 SC 280) has categorically held that to draw adverse inference against the genuineness of the will, if the same is not registered, is not warranted by law.
Naturally, the question whether the testator of the will gains anything by using the option of Section 18 of the Registration Act, 1908 to register the will comes up. The registration procedure proves that a document—a particular person's will—exists in the Office of the Registrar. It also shows that the testator of the will acknowledges that the will shall be carried out. Hence, prima facie, the registration confers on the will certain degree of authenticity. However, like an unregistered will, a registered will too may be contested on the basis of fraud, coercion, undue influence, or opportunity.
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