- Will is a declaration, where a person gives testament as to how and to whom his property (both movable and immovable property) shall be devolved or disposed of after his death so as to benefit the actual beneficiaries.
- The Indian Succession Act, 1925 is applicable and it governs the Wills of Hindus, Buddhists, Jains, and Sikhs. Wills concerning Muslims are dealt with under Mohammedan Law.
- Will is enforceable and executed after the death of the person thus it is not covered under the Transfer of Property Act.
- Under the Registration Act of 1908, registration of a Will is not compulsory according to Section 18 of the Act.
A will is a document wherein it is laid down as to how a property has to be distributed and to whom after the death of the person. The question as to why is it necessary to have a will can be answered by saying that a will ensures that the property is distributed to the right people in the right way. The will has to be made with regards to the property that you have absolute rights over it. Any person above the age of 21 Years and of sound mind can make a will.
WHAT IS WILL
Will is defined under Section 2(h) of the Indian Succession Act, 1925. It defines Will as a legal declaration of a person with respect to his property, both real and personal property, excluding the ancestral property that he desires to transfer to a beneficiary after his death.
ESSENTIALS OF A VALID WILL:
- The existence of a testament by the testator, such a testament has to be made without any coercion or undue influence.
- The property that is in disposition has to be under his ownership.
- The details of the beneficiary have to be given clearly.
- There must be two attesting witnesses while signing the will.
REGISTRATION OF THE WILL
Under the Registration Act 1908, there are few documents that have to be registered compulsorily that has been given under Section 17 of the Act, the registration of will is not under the same. Under Section 18 of the Registration Act 1908, it is provided that registration of will is not mandatory or compulsory. But it is advisable to register the same as it has more evidentiary value.
In the case of Ishwardeo Narain Singh vs Sm. Kamta Devi and Ors. AIR 1954 SC 280, 1953 (1) BLJR 690, it was held by the Supreme Court that non-registration of the will cannot be held as a reason for the invalidity of the will.
Thus, we can say from the above precedent that it is not mandatory for us to register a will, or it cannot be said to be invalid just on the ground that it has not been registered.
In the case of Rajkishore Panda vs Banitra Madhya Engineering Vidhyapith AIR 1987 Ori 55, the will was put forth as one of the documents under Section 18 of the Registration Act, and for which registration is only optional.
In the case of Ryali Kameswara Rao vs Bendapudi Suryaprakasarao and Ors. AIR 1962 AP 178, the Court heldthat no adverse presumption could be drawn if the will is not registered. It was also suggested that the non - registration of the will was a very material circumstance against its truth and the explanation offered for non-registration was palpably false.
It is elementary that will is not one of the instruments that need to be registered compulsorily.
Finally, it can be held that Will though is a legal document that enables the transfer or disposition of property from one person to the other, it need not be registered compulsorily as per the Registration Act, 1908. It gets even more clear by perusing through the aforementioned case laws or precedents. The who and what as to the question of registration of will being answered, it is however advisable that Will must be registered, for it to have more legal and evidentiary value.