Answer By law4u team
In India, the legal validity of a will, whether registered or unregistered, is essential for it to be executed in court. While the Indian Succession Act, 1925 does not make it mandatory for a will to be registered to be valid, certain conditions must be met for an unregistered will to be executed in court. The main concern is whether the will reflects the testator's true intentions and whether it is legally sound.
Key Points Regarding Execution of an Unregistered Will:
No Requirement for Registration:
Under Section 18 of the Indian Registration Act, 1908, there is no requirement for a will to be registered for it to be legally valid. A will can be executed and acted upon even if it is not registered, provided that the testator meets all the requirements for making a valid will.
The primary concern for executing an unregistered will is that it must be executed in accordance with the legal requirements, such as the testator’s consent, witnesses, and capacity.
Legal Validity of an Unregistered Will:
An unregistered will is legally valid if it has been executed with the proper testamentary capacity and the necessary witnesses as per Section 63 of the Indian Succession Act, 1925.
For a will to be valid, the testator must be of sound mind and not coerced, and the will must be signed by the testator in the presence of at least two witnesses, who also sign it in the testator’s presence.
The Role of Probate:
To execute any will, including an unregistered one, probate must be obtained. Probate is the legal process where the court officially validates the will and allows the executor to carry out its provisions.
In the case of an unregistered will, the executor can apply for probate in the relevant district court where the will is presented. The court will scrutinize the will for its authenticity, the testator’s intent, and the presence of the required witnesses.
Court Scrutiny of the Unregistered Will:
When an unregistered will is presented for probate, the court will examine its authenticity, the testator’s intent, and whether all legal formalities were followed. If any discrepancies arise, the court may require further proof or documents.
If the will is contested, the court may ask for further evidence, such as witness testimonies or other supporting documents, to verify the genuineness of the will.
Witnesses and Evidence:
The testamentary intention of the testator is key to proving the validity of an unregistered will. It must be supported by witnesses who were present when the will was signed by the testator. Their testimony can strengthen the case for the will’s validity.
If the witnesses to the unregistered will are not available or their signatures cannot be verified, the court may face difficulty in executing the will. In such cases, the court may rely on circumstantial evidence or additional documents to ascertain the testator’s intentions.
Challenges in Case of Unregistered Wills:
An unregistered will is more susceptible to legal disputes or challenges by heirs or other claimants, as there is no official record of its existence. Disputes may arise if a competing will exists or if the testator’s intentions are unclear.
The burden of proof is on the person seeking the will’s execution to prove that it was indeed made by the testator and that it represents the testator's last will and testament.
Impact on Estate Distribution:
If the court grants probate to an unregistered will, the executor will have the legal authority to distribute the deceased’s estate as per the will. However, if the will is found to be invalid or contested, the estate may be distributed according to the laws of intestate succession.
Example:
If Mr. Sharma passes away leaving behind an unregistered will, his son applies for probate in the court. The will is witnessed by two people, and the testator’s intent is clear in the document. However, if one of the beneficiaries contests the will, claiming it was forged, the court will require the witnesses to testify and provide further evidence that the will was genuine. Once the court validates the will through the probate process, the son will be able to execute it and distribute the estate accordingly.
Important Considerations:
Witnesses:
The presence of reliable witnesses is crucial for the execution of an unregistered will. If witnesses are unavailable, the court may face challenges in accepting the will.
Probate Procedure:
Obtaining probate is essential for any will, whether registered or unregistered. Without probate, the executor cannot lawfully distribute the estate as per the will.
Legal Disputes:
Unregistered wills are often subject to disputes, so it is vital to ensure that all legal requirements are met and that the will is properly executed.
Clarity of Intent:
The clearer the testator’s intent, the stronger the case for executing an unregistered will. If the language in the will is ambiguous, the court may interpret it differently, which could lead to disputes.
Conclusion:
Yes, an unregistered will can be executed in court, but it must meet the legal requirements outlined in the Indian Succession Act, 1925. The probate process is essential for validating the will, and the presence of witnesses and clear testamentary intent is crucial. While registration is not mandatory for a will to be valid, unregistered wills are more prone to challenges, and additional evidence may be required to establish their authenticity and enforceability.
